Whatever this case may be, it is not a contest for an office, nor does any one claim that R. E. Spence is an usurper, holding an office to which another is entitled. No other person asserts any right to exercise the functions of the office which Senator Spence is now filling. We need not, therefore, consider what remedy such a person should pursue, if there were such a person.
The allegations of the pleadings are that Senator Spence has been recognized as a member of the Senate by that body and is serving as a member thereof. He is, at least, a de facto member of that body, and, so long as the Senate recognizes his right to serve as such, it cannot be directly questioned except by and in the Senate. The citizen and taxpayer who has brought this suit does not question Senator Spence's right to act as a de facto officer; his insistence is that he is not entitled to he compensated for that service.
The few and the simple facts of this case should be kept in mind in determining the question which the taxpayer does raise, and that is, whether Senator Spence, although a de facto senator, has the legal right to draw compensation from the State Treasury for his service as a senator. The facts are undisputed and are all matter of public record.
The first senatorial district is entitled to a senator; and it had one. That senator resigned while the Senate was in session, and the Governor has appointed a successor, and this successor is now serving. Has this successor the legal right to receive compensation for that service? *Page 281
It is unimportant that the Auditor of State has not refused to issue a voucher upon the State Treasury to compensate that service. The legal and constitutional question is no more affected by the willingness of the Auditor to issue this voucher than it would be by his refusal to do so. The question is not, what has the Auditor done, or is willing to do? The question is, what is the duty and what is the power of the Auditor under the Constitution and laws of this State? And the decision of that question should not be confused by any consideration of the fact that no other person claims the right to discharge the duties of Senator from the First Senatorial District of the State. The question raised by the citizen and taxpayer, as we have said, is the right of Senator Spence to have the Auditor draw in his favor a warrant upon the State Treasury to compensate him for that service. Certainly the complaisance or the obduracy of the incumbent filling the office of Auditor of State cannot be decisive of a question of such constitutional importance. His successor might be of another opinion, and constitutional rights cannot be made dependent upon the policy of the Auditor of State. I assume this officer wants only to know what his duty is under the Constitution and laws of the State, and no reflection upon him is intended. But what I do insist is that the willingness or unwillingness of the Auditor to issue the warrant is of no importance and cannot affect the decision of the question which the citizen and taxpayer has raised.
When the merit of the case is reached, the question appears to me to be a very simple one, and that is, did the Governor of the State have the authority to make the appointment? Section 6 of article 5 of the Constitution answers this question. It reads as follows: "The Governor shall issue writs of election to fill such vacancies as shall occur in either house of the General Assembly," and it is not insisted in any of the briefs filed in this case that this direction is not mandatory. On the contrary, the universal rule of construction is that such *Page 282 provisions of the Constitution are to be construed as mandatory. As no one questions this rule of construction, I shall not argue it further nor cite cases to support it.
It is, however, suggested in the brief by amicus curiae that 23 of article 6 provides that "When any office from any cause may become vacant, and no mode is provided by the constitution and laws for filling such vacancy, the Governor shall have the power to fill the same by granting a commission, which shall expire when the person elected to fill said office at the next general election shall be duly qualified." Now, it may be conceded that an enabling act is necessary to make 6 of article 5, above quoted, effective, and that, in the absence of an enabling act, 23 of article 6 would confer upon the Governor the power to make the appointment, if, in fact there were a vacancy, and no mode had been provided by the Constitution to fill it. But such is not the state of the law. Full and adequate provision has been made for filling the vacancy as the Constitution contemplated should be done. By 4962, Crawford Moses' Digest it is provided that: "When any member elected to either house of the General Assembly shall resign in the recess thereof, he shall address and transmit his resignation, in writing, to the Governor; and when any such member shall resign during any session, he shall address his resignation to the presiding officer of the house of which he is a member, which resignation shall be entered upon the journal; in which case, and in all cases of vacancies happening or being declared during any session of the General Assembly, by death, expulsion or otherwise, the presiding officer of the house in which such vacancy shall happen shall immediately notify the Governor thereof, who shall immediately issue a writ of election to fill such vacancy." Section 4963, Crawford Moses' Digest provides that when the Governor shall receive any resignation or notice of vacancy, he shall, without delay, issue a writ of election to fill such *Page 283 vacancy. Sections 4964 and 4965 Crawford Moses' Digest provide how the special election shall be held which the Governor is required to call.
The duty of the Governor is therefore mandatory, and full provision is made whereby that duty may be discharged. It, appears therefore that the Governor is without power to make the appointment, and therefore Senator Spence is not a de jure senator. Consequently, the Auditor is without authority to issue the voucher.
In the recent case of Hill v. Rector, 161 Ark. 574,256 S.W. 848, Hill brought suit against the city of Rector to recover a sum alleged to be due him for his services as mayor of that city. He alleged that the legally elected mayor had resigned, and that the city council, at its first regular meeting, had elected him as mayor to serve for the unexpired term. On behalf of the city it was denied that Hill had been elected in the manner provided by 7518, Crawford Moses' Digest, and that he was not, therefore, the legal mayor of the city, although he had served in that capacity. We there said: "It follows that the appellant failed to prove that he was duly elected mayor of the city of Rector. The appellant, however, does prove that he was the de facto mayor of the city of Rector. But in the case of Stevens v. Campbell,67 Ark. 484, 55 S.W. 856, quoting from Andrews v. Porter, 79 Me. 490, we held: `A de facto officer has no legal right to the emoluments of the office, the duties of which he performs under color of an appointment, but without legal title. He cannot maintain an action for the salary. His action puts in issue his legal title to the office, and he cannot recover by showing merely that he was an officer de facto.' The fact that the appellee (the city) in its answer recognized that the appellant `was permitted to act as mayor' does not estop the appellee from setting up that appellant was not the duly elected mayor of the city. The appellee expressly denied that appellant was such mayor. We conclude therefore that *Page 284 the court did not err in directing the jury to return a verdict in favor of the appellee."
The reasons which induced us to hold that Hill was not entitled to recover compensation for his services as mayor of the city of Rector, although he had served in that capacity, are applicable here, and should result in the holding that Senator Spence is not entitled to compensation for his services as senator, although he has served in that capacity.
We have many times held that any citizen and taxpayer may, in his own name, institute suit in the chancery court to prevent any public official from paying out public revenue contrary to law, the most recent of these being the case of Rose v. Brickhouse, 182 Ark. 1105,34 S.W.2d 472, in which the opinion was delivered January 19, 1931, and a number of cases to the same effect were there cited. That was a case in which Rose, as a citizen and taxpayer, was permitted to enjoin Brickhouse from drawing compensation for services in an official capacity which was unauthorized by law.
I am therefore of the opinion that, although Senator Spence is a de facto senator, and may act as such so long as he is permitted to do so by the Senate, yet his right to draw compensation for that service is one which any citizen and taxpayer has the right to raise, and, as Senator Spence is serving without authority of law, he is not entitled to be compensated for that service, and the Auditor should be enjoined from issuing him a voucher paying him therefor.
I am authorized by Mr. Justice MEHAFFY to say that he concurs in the views here expressed. *Page 285