If old volunteer fire department board members and a bank refuse to release pension funds to a newly elected board, what legal remedies are available?

Plain-English summary

The Gepp Volunteer Fire Department in Fulton County is a nonprofit that receives a share of a county sales tax voters approved in 2002 to fund local fire protection. The county treasurer has been distributing tax revenue to listed fire departments, including Gepp. A newly elected Gepp board cannot access the bank account where Gepp's share has been deposited because the previous board members and the bank have not cooperated in transferring control.

Senator Wallace and Representative Gazaway asked the AG: what legal remedies are available?

The AG identified three civil remedies, with the choice depending on the fire department's legal structure and who initiates the lawsuit:

1. Statutory usurpation action under A.C.A. § 16-118-105. This stops a "usurper" (someone who intrudes into a vacant office or holds office without color of title) from exercising the powers of the office. The threshold question is whether the previous board members are "public officials" subject to this remedy. That depends on whether they have authority to exercise "sovereign power" (Bean v. Humphrey). Volunteer fire departments come in four flavors:

• Private nonprofit corporations collecting member fees/dues (probably not public officials)
• Fire-protection or suburban fire-improvement districts using ad valorem taxes (yes, public officials)
• County-created fire departments under § 14-20-108(c) (yes)
• County-created subordinate-service districts under §§ 14-14-708, 14-14-709 (yes)

Gepp appears to be a private nonprofit, so the AG could not definitively say the board members are public officials. He noted that even if they are, the question is whether the office is a "county office" (which would let the prosecuting attorney bring the lawsuit when the entitled person doesn't sue within three months). Based on the facts presented, Gepp's board does not appear to occupy a county office.

2. Common-law writ of quo warranto. A separate, ancient remedy that removes a usurper. Only the state (typically the prosecuting attorney) can bring this action; private individuals cannot. The fact that the office is or is not a "county office" does not matter for quo warranto, just whether the holdover is a usurper.

3. Illegal-exaction lawsuit under Article 16, § 13 of the Arkansas Constitution. Any citizen can sue to "protect the inhabitants thereof against the enforcement of any illegal exactions whatever." Misapplication of public funds qualifies as an illegal exaction, even when officials act in good faith. Available remedies include declaratory judgment, injunction stopping use of funds, reimbursement of funds, and an accounting.

The opinion also noted the Arkansas Unclaimed Property Act: bank deposits without customer-initiated activity for three years are presumed abandoned and become subject to the Auditor of State's custody.

What this means for you

Newly elected volunteer fire department boards

You have three options, and the right one depends on your structure. Talk to a county or municipal attorney before filing. Possible paths:

• If your department is a private nonprofit (like Gepp), the cleanest path is probably an illegal-exaction lawsuit under Article 16, § 13. Any citizen can bring it (so you can find a board member or department member who is also a county taxpayer to sue). Remedies include injunction, declaratory judgment, reimbursement, and an accounting.
• If your department is a fire-protection district, county-created fire department, or county subordinate-service district, the board members hold "public offices" and the prior board's holdover signatories are usurpers. A statutory usurpation action (§ 16-118-105) can directly remove them and require them to surrender all books, papers, and "all other things pertaining to the office," including bank account control.
• In any structure where the office holders are public officials, the prosecuting attorney can bring a quo warranto action even if no private party with standing wants to sue.

Document the chain of authority. Get the original 2002 county ordinance, the bank signature card, and any minutes or resolutions of the new board's election. The bank may be willing to cooperate once you provide formal proof of authority change.

Prosecuting attorneys in similar situations

If the local board is a "public office" structure and a holdover refuses to relinquish control, you have authority to bring a usurpation action or a quo warranto. State ex rel. Robinson v. Jones, 194 Ark. 445, 108 S.W.2d 901 (1937), is the leading authority for prosecutorial quo warranto authority. Don't wait three months on the statutory route if there is a private party entitled to the office; check whether they intend to sue, and if not, you can bring the action yourself.

Banks holding government funds

If you receive a documented notice of authority change from a public entity (county-created board, fire-protection district, etc.), comply. Holding government tax revenue based on a stale signature card invites an illegal-exaction lawsuit naming you as a co-defendant. A.C.A. § 23-47-201 lets you set rules governing deposits, but those rules cannot trump the underlying public-law authority of the new board.

If the funds sit dormant for three years, they become subject to escheat under the Unclaimed Property Act (A.C.A. § 18-28-201 et seq.). The Auditor of State takes custody, and the original holders lose easy access. Don't let this happen with public tax revenue.

County attorneys and county officials

Consider auditing the county's distributions to volunteer fire departments. Verify that current signatories on each department's account match the current board. If departments have a history of board turnover or holdover signatories, work with the prosecuting attorney to clean it up before a service interruption or a missed tax distribution causes a problem.

Citizens and taxpayers

Article 16, § 13 of the Arkansas Constitution gives you broad standing to sue when public funds are misused. If you suspect a holdover or a misappropriation, the illegal-exaction lawsuit is a powerful tool. The standing rule is generous: any citizen of any county, city, or town can sue on behalf of all interested inhabitants. You don't need to show personal harm beyond your status as a citizen.

Common questions

What is "usurpation" in Arkansas law?
Two situations qualify under A.C.A. § 16-118-105. First, intruding into a vacant office. Second, ousting the rightful incumbent without color of title. The Arkansas Supreme Court in Looper v. Thrash, 334 Ark. 212, 972 S.W.2d 250 (1998), confirmed that holdover officials who do not relinquish their office to a properly elected successor are usurpers within the meaning of the statute.

What is the difference between statutory usurpation and quo warranto?
A.C.A. § 16-118-105 codifies a private (or, in some cases, prosecutor-led) action to remove a usurper. Quo warranto is the older common-law writ for the same purpose. Only the state can bring quo warranto; both private individuals (entitled to the office) and the state (in certain cases) can bring statutory usurpation. The two remedies overlap and can sometimes be used in parallel.

What is "color of title"?
A claim of right that, while ultimately invalid, has some appearance of legitimacy. Holdover officials sometimes try to claim color of title based on their original election. But once a successor is elected, the holdover's title evaporates, and continued occupation of the office becomes usurpation.

What does "compelling public interest" mean for an illegal-exaction lawsuit?
The Arkansas Supreme Court has been generous in finding compelling public interest in misuse of public funds. Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989), confirmed that good-faith misuse still counts. The standing rule under Article 16, § 13 is that "any citizen" can sue, so the threshold is low.

Can the new board sue the bank for the funds?
Probably not directly under usurpation or quo warranto, which target individuals holding offices, not banks. An illegal-exaction lawsuit could name the bank as a defendant if the bank is helping misuse public funds (e.g., by allowing former officials to write checks). The bank's exposure typically comes from cooperating with usurpers or signatories whose authority has been formally revoked. Once the new board provides documented authority, the bank should comply, or the bank itself becomes a target.

What are the remedies available in an illegal-exaction lawsuit?

• Injunction stopping further misuse (Buonauito v. Gibson, 2020 Ark. 352, 609 S.W.3d 381 (Arkansas Supreme Court))
• Declaratory judgment (Jones v. Clark, A.C.A. § 16-111-101)
• Reimbursement of misused funds (Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999); Munson v. Abbott, 269 Ark. 441, 602 S.W.2d 649 (1980))
• An accounting (Tedford v. Mears, 258 Ark. 450, 526 S.W.2d 1 (1975))
• Removal of an ineligible office holder (White v. Hankins, 276 Ark. 562, 637 S.W.2d 603 (1982))

Why is the four-flavor classification of volunteer fire departments important?
The legal structure determines whether board members hold "public offices" for usurpation purposes. Private nonprofits do not have public-office holders in the strict sense; the four other structures (improvement districts, county-created departments, etc.) do. Without that public-office status, statutory usurpation may not apply.

Can the new board just open a separate bank account and have the county treasurer redirect distributions?
Possibly, but only with the county's cooperation. The county treasurer distributes funds based on the official designation in county records. Documented authority change of the recipient can authorize redirection. This is the simplest path and avoids litigation, but requires the county and the bank to cooperate without a court order.

Background and statutory framework

Constitutional standing. Ark. Const. art. 16, § 13: "Any citizen of any county, city or town may institute suit, in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever."

Statutory usurpation action. A.C.A. § 16-118-105 lets a person "entitled to the office or franchise" sue to "prevent the usurper from exercising the office or franchise." For "county offices or franchises where there is no other person entitled" or where the entitled person does not sue within three months, the prosecuting attorney must file. Successful claims can result in removal and surrender of "books and papers" and "all other things pertaining to the office or franchise."

Common-law quo warranto. "By what warrant" or "by what authority." Only the state can bring quo warranto (Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d 818 (2003)). The county-office requirement does not apply (State ex rel. Robinson v. Jones, 194 Ark. 445, 108 S.W.2d 901 (1937)). Petitions for quo warranto directed to state, county, or municipal officials must be filed in the Arkansas Supreme Court (Ark. Sup. Ct. R. 1-2(a)(3)).

"Public office" test for usurpation. Bean v. Humphrey, 223 Ark. 118, 123–25, 264 S.W.2d 607, 609–10 (1954) (Arkansas Supreme Court): the necessary requisite is authority to exercise "sovereign power." Other factors include tenure, compensation, duties fixed by law, oath of office, formal commission, and bond (Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952) (Arkansas Supreme Court)).

Volunteer fire department structures. Per AG Op. 2022-013 and others, four types:

1. Private nonprofit (typically Arkansas Nonprofit Corporation Act of 1993, A.C.A. § 4-33-101 et seq.)
2. Fire-protection district or suburban fire-improvement district (A.C.A. §§ 14-284-101 et seq., 14-284-201 et seq., 14-92-201 et seq.)
3. County-created fire department (A.C.A. § 14-20-108(c))
4. County-created subordinate-service district (A.C.A. §§ 14-14-708, 14-14-709)

Fire department certification. A.C.A. § 20-22-802(2), (4), § 20-22-806, § 20-22-807 establish certification by the Director of the Office of Fire Protection Services. A.C.A. §§ 20-22-808, 20-22-809 give certified departments limited civil liability and workers' compensation protection.

Bank deposit rules. A.C.A. § 23-47-201(a)–(b) permits banks to set rules governing deposits, but those rules cannot override the underlying public-law structure.

Unclaimed Property Act. A.C.A. § 18-28-201 et seq. Bank deposits with no customer-initiated activity for three years are presumed abandoned (§ 18-28-210(a)) and become subject to the Auditor of State's custody (§ 18-28-210(b)).

Illegal exaction case law. Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989) ("[n]either fraud nor bad faith must be shown"). White v. Hankins, 276 Ark. 562, 637 S.W.2d 603 (1982) (citizens can challenge eligibility of public officials). Buonauito v. Gibson, 2020 Ark. 352, 609 S.W.3d 381 (injunctions). Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999) (reimbursement). Tedford v. Mears, 258 Ark. 450, 526 S.W.2d 1 (1975) (accounting).

Citations

• Ark. Const. art. 16, § 13 (citizen standing for illegal exaction)
• Ark. Const. art. 19, § 20 (oath of office)
• A.C.A. § 16-118-105 (statutory usurpation action)
• A.C.A. § 16-111-101 (declaratory judgment)
• A.C.A. §§ 4-33-101 et seq. (Arkansas Nonprofit Corporation Act of 1993)
• A.C.A. §§ 14-20-108, 14-14-708, 14-14-709, 14-92-201 et seq., 14-284-101 et seq., 14-284-201 et seq. (volunteer fire department structures)
• A.C.A. §§ 18-28-201 to -210 (Arkansas Unclaimed Property Act)
• A.C.A. §§ 20-22-802 to -809 (fire department certification)
• A.C.A. § 23-47-201 (bank deposit rules)
• Bean v. Humphrey, 223 Ark. 118, 264 S.W.2d 607 (1954)
• State Bd. of Workforce Educ. v. King, 336 Ark. 409, 985 S.W.2d 731 (1999)
• Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952)
• Looper v. Thrash, 334 Ark. 212, 972 S.W.2d 250 (1998)
• Neal v. Parker, 200 Ark. 10, 139 S.W.2d 41 (1940)
• State ex rel. Robinson v. Jones, 194 Ark. 445, 108 S.W.2d 901 (1937)
• Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d 818 (2003)
• White v. Hankins, 276 Ark. 562, 637 S.W.2d 603 (1982)
• Buonauito v. Gibson, 2020 Ark. 352, 609 S.W.3d 381
• Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989)
• Anderson v. State ex rel. Crain, 266 Ark. 192, 583 S.W.2d 14 (1979)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2023-076
April 3, 2024
The Honorable David Wallace
State Senator
Senate Chair, Legislative Joint Auditing Committee
Post Office Box 11
Leachville, Arkansas 72438
The Honorable Jimmy Gazaway
State Representative
House Chair, Legislative Joint Auditing Committee
1603 South 30th Street
Paragould, Arkansas 72450
Dear Senator Wallace and Representative Gazaway:
I am writing in response to your request for my opinion on how a newly elected board of a
volunteer fire department may access or transfer county tax funds from an account over
which previous board members will not relinquish control. Your correspondence states that
“a volunteer fire department (Gepp Volunteer Fire Department) located in Fulton County
is a non-profit corporation and was organized to provide fire protection services to those
living in Gepp and the surrounding area.” You report that, in 2002, “the citizens of Fulton
County approved a ballot question that [called] for the collection and distribution of sales
and use tax on certain purchases.” You report that the “purpose of the tax is to fund fire
protection facilities in Fulton County” and that “the Fulton County Treasurer has
distributed these tax collections as required,” namely, by dividing the tax revenue into
“equal shares” and distributing it to fire departments on a specific list.
You also note that the newly elected board members have been unable to access the bank
account where the tax revenues have been deposited for the use of the Gepp Volunteer Fire
Department.
You state that neither the previous board members nor the bank have cooperated in
“relinquishing access to the funds on deposit.” You have attached to your request the
county ordinance, Ordinance No. 2002-14, that levied a county-wide sales-and-use tax “for
TIM GRIFFIN
ATTORNEY GENERAL
323 CENTER STREET, SUITE 200
LITTLE ROCK, ARKANSAS 72201 The Honorable David Wallace, State Senator
The Honorable Jimmy Gazaway, State Representative
Opinion No. 2023-076
Page 2
the purpose of funding fire protection facilities for the various fire departments in Fulton
County, Arkansas.”
The Ordinance provides that the revenue from the sales and use tax will be “divided and
spent for fire protection facilities” and divided between certain named fire departments in
Fulton County, including the “Gepp Fire Department, Gepp, Arkansas.”1
You ask the following two questions:

1. Are there any statutory remedies that would provide the newly elected board with
   access to the funds held on deposit with the bank?
2. Are there any rights or duties in statute available to any public official (state,
   county, or otherwise) to require the previous board or the bank to relinquish control
   of the funds to the newly elected board for providing fire protection services to the
   corresponding service area?
   RESPONSE
   The available remedies will depend on the reason why the newly elected board cannot
   access or transfer the tax revenue. Those remedies could include a statutory usurpation
   action, a common-law writ of quo warranto, or an “illegal exaction” lawsuit under Article
   16, § 13, of the Arkansas Constitution.
   DISCUSSION
   Your request concerns state tax dollars being held by a private bank. It appears from your
   opinion request that the bank or the signatories over the account in question, or both, are
   not allowing deposits kept in a Gepp Volunteer Fire Department bank account to be
   accessed or transferred out by a newly elected Gepp Volunteer Fire Department Board.2
   The core question here is how the newly elected board may access or transfer the funds
   currently held in a fire-department account.
   The answer to that question depends on the reason why the newly elected board is not being
   given access to, or the ability to transfer, the tax money. If the reason is that the Gepp
   1 Between your opinion request and the attached county ordinance, the fire department in question is referred
   to as both the “Gepp Volunteer Fire Department” and the “Gepp Fire Department.” I will assume for purposes
   of this opinion that both labels refer to the same fire department and not two different fire departments.
   Consequently, I will refer to the fire department in this opinion as the “Gepp Volunteer Fire Department,”
   which is the term used in your opinion request.
   2 For purposes of this opinion, I assume, to the extent that there are at least two bank accounts at issue, that
   both bank accounts in question are Gepp Volunteer Fire Department bank accounts: One with signatories
   who are no longer associated with or authorized to act on behalf of the Gepp Volunteer Fire Department, and
   one opened by the newly formed Gepp Volunteer Fire Department Board. The Honorable David Wallace, State Senator
   The Honorable Jimmy Gazaway, State Representative
   Opinion No. 2023-076
   Page 3
   Volunteer Fire Department has not met certain contractual obligations with the bank,3 then
   this is a private matter on which I cannot opine. But if the reason is that the two signatories
   over the original checking account refuse to cooperate in allowing access or in transferring
   the tax money from the bank account, then the following legal remedies may be available:4
   (1) a statutory usurpation action; (2) a common-law writ of quo warranto; (3) or a taxpayer
   “illegal exaction” lawsuit under Article 16, § 13, of the Arkansas Constitution.5 To use any
   of these legal doctrines, either the state or the person entitled to the office or franchise (in
   the first instance), the state (in the second instance), or a citizen (in the third instance),
   would need to file a civil lawsuit in court.6
3. Statutory usurpation action. Under A.C.A. § 16-118-105, one may bring an usurpation
   action to prevent an usurper—someone who either intrudes into a vacant public office or
   purports to hold a public office without any color of title—from holding or exercising the
   powers of a public office or franchise.7 A person who is “entitled to the office or franchise”
   may file a lawsuit to “prevent the usurper from exercising the office or franchise.”8 For
   “county offices or franchises where there is no other person entitled” to the office or where
   “the person entitled fails to institute the action for three (3) months after the usurpation,” it
   is the prosecuting attorney’s duty to file a lawsuit on behalf of the state to stop the usurper.9
   For purposes of a statutory usurpation action, the threshold question is whether the
   Department’s board members are public officials for purposes of A.C.A. § 16-118-105. If
   3 See A.C.A. § 23-47-201(a)–(b) (providing that banks have the “power to make rules governing deposits”
   and that such rules, when stated on a signature card or other signed document, are “a valid contract between
   the depositor and the bank, subject to the right of the bank to change or amend the rules”).
   4 Someone may wonder whether the tax money held in the bank account in question could escheat to the
   state. Under the Arkansas Unclaimed Property Act, A.C.A. § 18-28-201 et seq., bank deposits without any
   customer-initiated activity for three years are presumed to be abandoned, id. § 18-28-210(a), and subject to
   the custody of the Auditor of State, id. § 18-28-210(b).
   5 E.g., Ark. Att’y Gen. Op. 2008-012 (discussing these three legal remedies). A key question here is what
   authority, if any, do the signatories or the bank have over state tax dollars held in an account for the Gepp
   Volunteer Fire Department.
   6 This opinion reviews certain civil remedies. It does not review every possible civil remedy or any possible
   criminal remedy. It is within the authority of the prosecutor of a particular jurisdiction to prosecute any
   violations of criminal law.
   7 The Arkansas Supreme Court has held that de facto officers or “hold-over” public officials are “usurpers”
   within the meaning of A.C.A. § 16-118-105. See Looper v. Thrash, 334 Ark. 212, 217–18, 972 S.W.2d 250,
   252 (1998); see also Neal v. Parker, 200 Ark. 10, 139 S.W.2d 41, 44 (1940) (providing that, under the
   applicable usurpation statutes, a “usurper of a public office” is one who either “intrudes into a vacant office”
   or “ousts the incumbent without any color of title”).
   8 A.C.A. § 16-118-105(b)(1).
   9 Id. § 16-118-105(b)(3)(A). The Honorable David Wallace, State Senator
   The Honorable Jimmy Gazaway, State Representative
   Opinion No. 2023-076
   Page 4
   they are not, then the analysis stops, and a statutory usurpation action cannot move forward.
   A “necessary requisite” to a position being a “public office” is the authority to exercise
   “sovereign power.”10 This means public offices and officers typically have decision-
   making power and are not limited to simply advising.11 Other factors indicating that
   someone holds a “public office” include tenure, compensation, and duties “fixed by law”
   and “the taking of an oath of office, the receipt of a formal commission, and the giving of
   a bond.”12 But “no single factor is ever conclusive.”13
   Whether these factors indicate the Gepp Volunteer Fire Department Board and its members
   occupy a “public office” depends on how the Department was created and is governed or
   managed. In Arkansas, a fire department is any “organization established for the prevention
   or extinguishment of fires, including…fire departments organized under municipal or
   county ordinances, improvement districts, membership fee-based private fire departments,
   and volunteer fire departments.”14 And such fire departments may be “certified by the
   Director of the Office of Fire Protection Services as meeting minimum standards
   prescribed by the Arkansas Fire Protection Services Board.”15 Certified fire departments
   are given certain statutory benefits, including workers compensation and limited civil
   liability.16
   This office has long opined that there are several types of “volunteer fire departments”: (1)
   private, nonprofit corporations collecting membership fees or dues; (2) fire-protection
   districts that access local benefits to be collected with ad valorem taxes under either A.C.A.
   §§ 14-284-101 et seq. or §§ 14-284-201 et seq., or suburban fire-improvement districts that
   access local benefits to be collected with ad valorem taxes under A.C.A. § 14-92-201, et
   seq.; (3) county-created fire departments under A.C.A. § 14-20-108(c); or (4) county-
   created subordinate-service districts under §§ 14-14-708 and -709.17
   10 Bean v. Humphrey, 223 Ark. 118, 123–25, 264 S.W.2d 607, 609–10 (1954); see also Ark. Att’y Gen. Ops.
   2006-219, 2006-066, 2001-127, 1998-108.
   11 State Bd. of Workforce Educ. & Career Opportunities v. King, 336 Ark. 409, 418, 985 S.W.2d 731, 735
   (1999).
   12 Maddox v. State, 220 Ark. 762, 762–64, 249 S.W.2d 972, 972–73 (1952).
   13 Id., 220 Ark. at 764, 249 S.W.2d at 973; see also Ark. Att’y Gen. Ops. 2017-044, 1995-390.
   14 A.C.A. § 20-22-802(4).
   15 Id. § 20-22-802(2); see also id. §§ 20-22-806 (fire department certification requirements), 20-22-807
   (authorizing “certified fire departments and their firefighters” to “do all acts reasonably necessary to
   extinguish fires and protect life and property from fire”).
   16 A.C.A. §§ 20-22-808 (limited liability), 20-22-809 (workers’ compensation).
   17 E.g., Ark. Att’y Gen. Ops. 2022-013, 2008-134, 2004-294, 2001-351, 1999-346, 1997-377, 1996-114. The Honorable David Wallace, State Senator
   The Honorable Jimmy Gazaway, State Representative
   Opinion No. 2023-076
   Page 5
   If the Gepp Volunteer Fire Department is form two, three, or four, and is certified, then it
   is my opinion that the members of the Department’s board hold “public offices” for
   purposes of the usurpation statutes. But if the department is instead a private, nonprofit
   corporation that simply receives county funding, and is not certified, it is less clear. Based
   on the information you have provided, the Gepp Volunteer Fire Department itself is
   established by statute as a domestic nonprofit corporation under the Arkansas Nonprofit
   Corporation Act of 1993,18 but it is unclear whether the department and its board has
   statutorily set powers and duties, compensation, and authorization to exercise some sort of
   sovereign power.19 Ultimately, I lack sufficient information to definitively conclude
   whether the members of the Department’s board occupy a “public office.”
   When a person entitled to the office or franchise does not file a timely lawsuit, the next
   question is whether the “public office” in question is a county office—for which the
   prosecuting attorney may bring the statutory usurpation action. Based on the information
   provided here, it appears that the Department is a private, non-profit corporation that
   receives funding from the county. But no evidence has been provided indicating whether
   the Department was created by or governed by the county. In my opinion, based on the
   information you have provided me, the Department’s board members do not occupy a
   “county office” for purposes of the usurpation statutes.
   If a statutory usurpation claim is successful, a court could, in addition to removing the
   usurper from the office or franchise, require the usurper to surrender “books and papers,”
   and “all other things pertaining to the office or franchise”—such as authority and control
   over a government entity’s bank account containing public funds.20
4. Quo Warranto. The ancient, common-law writ of quo warranto—meaning “by what
   warrant,” or “by what authority”21—may also be used to remove an usurper from office.22
   18 A.C.A. §§ 4-33-101, et seq.
   19 See, e.g., Ark. Att’y Gen. Op. 2017-116 (opining that certain positions—water boards, public facilities
   board, airport commissions, and fire protection service board—were “public offices” because the “Code
   establishes the powers and duties of each position, sets the compensation—or lack thereof—for each position,
   and establishes the terms of office”). I also lack any evidence that the Board members here are required to
   take an oath. But if they are “public officers,” the Arkansas Constitution, art. 19, § 20, provides that
   “all…officers…, before entering on the duties of their respective offices, shall take and subscribe to
   the…oath.”
   20 A.C.A. § 16-118-105(b)(4)(B); see also Revis v. Harris, 219 Ark. 586, 589–90, 243 S.W.2d 747, 749–50
   (1951) (holding that a municipal judge who held that position unlawfully and without authority must return
   money received during that time).
   21 BLACK’S LAW DICTIONARY 1508 (11th ed. 2019).
   22 E.g., Anderson v. State ex rel. Crain, 266 Ark. 192, 193, 583 S.W.2d 14, 15 (1979); BLACK’S LAW
   DICTIONARY 1858 (11th ed. 2019) (defining “usurper” as “[o]ne who takes another’s power or position
   without any right to do so”). The Honorable David Wallace, State Senator
   The Honorable Jimmy Gazaway, State Representative
   Opinion No. 2023-076
   Page 6
   Although this remedy is not statutory, one may bring such a common-law claim
   independent of the above statutory usurpation procedure because the usurpation statute is
   “in lieu” of the common-law writ of quo warranto.23 But, unlike the statutory procedure,
   only the state, and not a private individual or entity, may bring a writ of quo warranto.24
   “[T]he prosecuting attorney as the representative of the State is authorized to maintain
   actions in the nature of proceedings quo warranto to oust any and all persons from offices
   to which they are not eligible.”25 For writs of quo warranto, “whether or not the office…[is]
   a county office within the meaning of the usurpation statutes is immaterial.”26
   If a quo warranto claim is successful,27 a court could remove the usurper from the office.
   While “quo warranto is not a remedy which excludes resort to other remedies,”28 the “relief
   which may be granted in a quo warranto proceeding should be determined from the
   pleadings and evidence.”29
5. Illegal exaction. Under this state’s constitution, Arkansas citizens also may file a lawsuit
   to recover misused or mishandled public funds, and to protect tax money from being spent
   by ineligible office holders:30 “Any citizen of any county, city or town may institute suit,
   in behalf of himself and all others interested, to protect the inhabitants thereof against the
   23 A.C.A. § 16-118-105(a); see also State ex rel. Robinson v. Jones, 194 Ark. 445, 108 S.W.2d 901, 903
   (1937) (“We are of the opinion that, independent of this statute, the prosecuting attorney as the representative
   of the State is authorized to maintain actions in the nature of proceedings quo warranto.”).
   24 See, e.g., Pederson v. Stracener, 354 Ark. 716, 720, 128 S.W.3d 818, 820 (2003); Moody v. Lowrimore,
   74 Ark. 421, 86 S.W. 400, 402 (1905) (noting that such a “remedy must be prosecuted by the state”); Ramsey
   v. Carhart, 27 Ark. 12, 14 (1871) (holding that a quo warranto “was not, nor is it now designed or used as a
   remedy, at law, by which individuals may contest the right to an office”) (emphasis in original).
   25 Jones, 194 Ark. at 445, 108 S.W.2d at 903 (1937); see also Ark. Att’y Gen. Op. 2012-122 (“A petition for
   a common law writ of quo warranto may be filed by a prosecuting attorney seeking on behalf of the state to
   remove to remove a person from office if they are ineligible to hold the office.”).
   26 Jones, 194 Ark. at 445, 108 S.W.2d at 903.
   27 See Ark. Sup. Ct. R. 1-2(a)(3) (providing that “Petitions for quo warranto…directed to the state, county,
   or municipal officials” must be filed in the Arkansas Supreme Court); but see Louisiana & Nw. R. Co. v.
   State, 75 Ark. 435, 88 S.W. 559, 562 (1905) (holding that the writ of quo warranto, “as an original
   proceeding,” is “abolished by the Code”).
   28 McKenzie v. Burris, 255 Ark. 330, 336–37, 500 S.W.2d 357, 362 (1973).
   29 17 MCQUILLIN MUN. CORP. § 50:20 (3d ed.); see generally Standard Oil Co. of Indiana v. State of Missouri
   ex inf. Hadley, 224 U.S. 270, 283–85 (1912) (applying Missouri law).
   30 See also White v. Hankins, 276 Ark. 562, 563–64, 637 S.W.2d 603, 605 (1982) (holding that, because the
   Highway Commission is responsible for expending tax money, a citizen may bring an illegal-exaction claim
   challenging an unlawful appointment of a commissioner to the Commission); Ark. Att’y Gen. Op. 2008-012
   (listing cases concerning illegal-exaction claims in usurper situations). The Honorable David Wallace, State Senator
   The Honorable Jimmy Gazaway, State Representative
   Opinion No. 2023-076
   Page 7
   enforcement of any illegal exactions whatever.”31 Such a legal action is typically called an
   “illegal exaction” claim.32 When a public official “misapplies funds (even in good faith)
   for a purpose or in a manner not authorized by law, the citizen may challenge the illegal
   exaction.”33
   If an illegal exaction claim is successful, several remedies are available.34 For instance, in
   addition to removing an ineligible office holder,35 a court could enjoin signatories over a
   bank account from using or exercising authority over funds in the account,36 issue a
   declaratory judgment declaring that the signatories over a bank account do not have lawful
   authority to exercise such authority over public funds,37 require those exercising authority
   over the bank account to reimburse or refund public funds being unlawfully held,38 or
   require an accounting of the bank account containing public funds.39
   31 Ark. Const. art. 16, § 13; see also Ark. Att’y Gen. Op. 2020-058 (opining that “[t]his broad constitutional
   provision covers almost any misuse or mishandling of public funds…[and] is self-executing and imposes no
   terms or conditions upon the right” of a citizen “to institute an action to prevent or remedy the misapplication
   of public funds”).
   32 E.g., Pogue v. Cooper, 284 Ark. 105, 107, 679 S.W.2d 207, 208 (1984) (an illegal-exaction action permitted
   to challenge improper use of the government’s personal property). Courts have granted various remedies in
   illegal-exaction cases, including declaratory judgments, see, e.g., Jones v. Clark, 278 Ark. 119, 122, 644
   S.W.2d 257, 259 (1983), injunctions, see, e.g., Buonauito v. Gibson, 2020 Ark. 352, 5–6, 609 S.W.3d 381,
   385 (2020), or an accounting and reimbursement, see, e.g., Munson v. Abbott, 269 Ark. 441, 450, 602 S.W.2d
   649, 654–55 (1980).
   33 Howard W. Brill & Christian H. Brill, Taxpayer Lawsuits, 1 ARK. LAW OF DAMAGES § 22:7 (2023); see
   also Hartwick v. Thorne, 300 Ark. 502, 506, 780 S.W.2d 531, 533 (1989) (holding that, for an illegal-exaction
   claim, “[n]either fraud nor bad faith must be shown”).
   34 See, e.g., Jackson v. Munson, 288 Ark. 57, 58–59, 701 S.W.2d 378, 379–80 (1986) (indicating that a party
   may bring an illegal action claim even if other remedies are available or sought).
   35 See, e.g., White, 276 Ark. at 564, 637 S.W.2d at 605 (holding that a citizen could challenge the eligibility
   of someone appointed to the state highway commissioner under an illegal exaction suit).
   36 Buonauito, 2020 Ark. at 5–6, 609 S.W.3d at 385 (noting that a court may enjoin a state entity from using
   funds for highway construction in violation of state law); Starnes v. Sadler, 237 Ark. 325, 329–31, 372
   S.W.2d 585, 587–88 (1963) (enjoining two public officials from serving unlawfully on a board).
   37 See, e.g., A.C.A. § 16-111-101 (authorizing courts to “declare rights, status, and other legal relations”).
   38 Massongill v. Cnty. of Scott, 337 Ark. 281, 286, 991 S.W.2d 105, 108 (1999) (holding that public officials
   must refund payments made illegally); City of Jacksonville v. Venhaus, 302 Ark. 204, 211, 788 S.W.2d 478,
   482 (1990) (directing that the illegally obtained “residual funds be returned pro rata”).
   39 E.g., Tedford v. Mears, 258 Ark. 450, 456–57, 526 S.W.2d 1, 5 (1975); see also A & P’s Hole-In-One, Inc.
   v. Moskop, 38 Ark. App. 234, 239, 832 S.W.2d 860, 863 (1992) (defining “an accounting” as “an equitable
   remedy designed to provide a means for compelling one…to render an account of his actions and for the
   recovery of any balance found to be due”); but see Starnes v. Sadler, 237 Ark. 325, 331, 372 S.W.2d 585,
   588 (1963) (holding that “appellants should not be required to account for funds receive for services rendered The Honorable David Wallace, State Senator
   The Honorable Jimmy Gazaway, State Representative
   Opinion No. 2023-076
   Page 8
   Assistant Attorney General William R. Olson prepared this opinion, which I hereby
   approve.
   Sincerely,
   TIM GRIFFIN
   Attorney General
   and expenses incurred” because “there is nothing in the record to justify a find that appellants have acted
   with any fraudulent intent, or that they have even appreciated the possibly of their holding illegal offices”).