Ark. Code Ann. § 16-118-105 (2026)

Research References

Ark. L. Rev.

Wills, Constitutional Crisis: Can the Governor (or Other State Officeholder) Be Removed from Office in a Court Action after Being Convicted of a Felony?, 50 Ark. L. Rev. 221.

U. Ark. Little Rock L.J.

Heller and Sallings, Survey of Public Law, 3 U. Ark. Little Rock L.J. 296.

Annual Survey of Caselaw, Election Law, 26 U. Ark. Little Rock L. Rev. 904.

Case Notes

Applicability.

The statute only applies to the usurpation or exercising of an office to which one is not entitled following an election; it does not apply to an action challenging a candidate's qualifications to appear on a ballot as a candidate for public office. Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000).

Burden of Proof.

In a usurpation proceeding, plaintiff has the burden of establishing his qualifications to hold the office. Jones v. Duckett, 234 Ark. 990, 356 S.W.2d 5 (1962).

Election Contests.

This section includes ordinary election contests for office. Wood v. Miller, 154 Ark. 318, 242 S.W. 573 (1922).

This section does not authorize a defeated candidate to contest the election by a suit in his own name, or to institute ouster proceedings, unless such candidate is able to show that he is entitled to the office. Cherry v. Webb, 196 Ark. 17, 115 S.W.2d 865 (1938).

Suits to contest municipal elections are triable by the circuit court. Purdy v. Glover, 199 Ark. 63, 132 S.W.2d 821 (1939).

Although an incumbent state senator had been defeated in the primary for reelection, he was ineligible to serve as a member of the county board of election commissioners. Jones v. Duckett, 234 Ark. 990, 356 S.W.2d 5 (1962).

Action by defeated candidate contesting winner's eligibility for office brought under this section is not a contest of the election, for there is nothing to contest concerning the results of the election. Jessup v. Hancock, 238 Ark. 866, 385 S.W.2d 24 (1964).

Where plaintiff in school board election could lay no claim to having received more votes than the defendant, for, even after the revised count conducted by the court, each party received equal number of votes, plaintiff did not qualify as a person authorized to bring suit under this section. Martin v. Hefley, 259 Ark. 484, 533 S.W.2d 521 (1976).

Action allowed under this section was a petition for a writ of quo warranto; thus, where the justice of the peace was certified as the winner of an election to Justice of the Peace and it was alleged that he was not qualified to serve, such that the action available was a petition for a writ quo warrant, the action had to be brought by the prosecuting attorney. Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d 818 (2003).

Institution of Actions.

Quo warranto in the name of the state will issue only where the whole community is interested and will not be granted at the instance of an individual for the determination of a private right. Ramsey v. Carhart, 27 Ark. 12 (1871).

Action brought by the Attorney General in the name of the state in lieu of quo warranto is proper proceeding to test validity of organization of school district. Beavers v. State, 60 Ark. 124, 29 S.W. 144 (1895).

A joint action for the usurpation of an office may be maintained by the state and the party entitled to the office. Whittaker v. Watson, 68 Ark. 555, 60 S.W. 652 (1901); Barnett v. McCray, 169 Ark. 833, 277 S.W. 45 (1925).

The remedy for usurpation of the office of road overseer, not having been vested elsewhere, is by an action in the circuit court brought either by the state or the person entitled to the office. State ex rel. Att'y Gen. v. Sams, 81 Ark. 39, 98 S.W. 955 (1906).

In an action to contest the right to hold office, with one alleged to be a usurper thereof, it devolves upon the party complaining in order to state a cause of action to allege that the defendant was not acting under an election to office and is a usurper; it is not sufficient merely to set forth facts invalidating the election. Ferguson v. Wolchansky, 133 Ark. 516, 202 S.W. 826 (1918).

The prosecuting attorney may be compelled by mandamus to bring ouster suit. Vanhoose v. Yingling, 172 Ark. 1009, 291 S.W. 420 (1927).

Prosecuting attorney is authorized to maintain actions in the nature of quo warranto proceedings to oust any and all persons from offices to which they are not eligible or the right to hold which they may have forfeited. State ex rel. Robinson v. Jones, 194 Ark. 445, 108 S.W.2d 901 (1937).

Suit to oust elected candidate or to declare him ineligible may be brought only by the prosecuting attorney, by proceeding in the nature of quo warranto. Cherry v. Webb, 196 Ark. 17, 115 S.W.2d 865 (1938).

Where elected justice of peace had acted as judge of election, his election being void, incumbent justice had the right to contest his eligibility to hold the office and to continue in office until a successor to him qualified. Faulkner v. Woodard, 203 Ark. 254, 156 S.W.2d 243 (1941).

—County Offices or Franchises.

A director of a levee district is not a county officer within the meaning of this section. State ex rel. Going v. Higginbotham, 84 Ark. 537, 106 S.W. 484 (1907).

This section does not authorize private citizens to bring a suit to oust a usurping county officer, the only persons authorized to bring such suits being the defeated candidate and the prosecuting attorney. Vanhoose v. McGregor, 172 Ark. 1012, 291 S.W. 422 (1927).

—Other Than County Offices or Franchises.

Municipal officers are not county officers within the meaning of this section, and the action in such case cannot be brought by prosecuting attorney, but must be prosecuted by the Attorney General. State v. Tyson, 161 Ark. 42, 255 S.W. 289 (1923).

The challenge of the right to hold the office of town marshal is within the usurpation statute. State v. Tyson, 161 Ark. 42, 255 S.W. 289 (1923).

An action by a taxpayer to compel the defendant to repay city money received as city attorney and enjoin him from collecting any further sums is an action at law against the usurpation of office which cannot be brought by a taxpayer. Scott v. McCoy, 212 Ark. 574, 206 S.W.2d 440 (1947).

A private individual has no right to question the title to the office of municipal judge; it can only be questioned by the Attorney General. Logan v. Harris, 213 Ark. 37, 210 S.W.2d 301 (1948); Beshear v. Clark, 292 Ark. 47, 728 S.W.2d 165 (1987).

The Attorney General is the proper person to institute proceedings for the ouster of a member of the Game and Fish Commission, but when such a member was properly holding office, the Attorney General properly refused. Drennen v. Bennett, 230 Ark. 330, 322 S.W.2d 585 (1959).

In action to remove legislator or prevent legislator from exercising his powers because he moved to another district from that in which he was elected, citizen was not the proper party to bring a writ of quo warranto because, under subdivision (b)(3)(B) of this section, for usurpation of other than county officers, such an action had to be instituted by the Attorney General; moreover, the matter was one to be determined by the Arkansas House of Representatives, not the circuit court. Magnus v. Carr, 350 Ark. 388, 86 S.W.3d 867 (2002).

Jurisdiction.

Chancery will not give relief by ousting one improperly holding office, as there is a plain, complete, and adequate remedy at law. Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667 (1907).

Where jurisdiction, with respect to claims to public office, is not expressly, or by necessary implication, placed elsewhere, the circuit court, under the Arkansas Constitution, has residuary jurisdiction, and it is immaterial whether the actions be termed election contests, proceedings in the nature of quo warranto, or suits to oust usurpers. Purdy v. Glover, 199 Ark. 63, 132 S.W.2d 821 (1939).

Liability for Fees and Emoluments.

Rule applicable to damage cases has no applicability to the case of an officer suing for his salary, liability being not upon contract, and officer wrongfully excluded from office may recover salary without crediting his earnings thereon. Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497 (1937).

Insurance commissioner and fire marshal deprived of his office by another prior to abolition of office, because of invalidity of emergency clause in statute, was entitled to amount of salary he would have received from time he was deprived of office until 90 days after adjournment of the General Assembly. Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497 (1937).

A person acting as city marshal of a city of the second class although a de facto city marshal, without being duly elected is a usurper and where he has received fees and emoluments arising from the office or franchise, he shall be liable therefore to the person entitled thereto. A person entitled to the office may bring an action to recover the fees and the office. Sitton v. Burnett, 216 Ark. 574, 226 S.W.2d 544 (1950).

Mayor who illegally received money for labor in construction of pipeline from water and light plant was not required to refund money to governmental agencies, since he did not receive money as an officer, but as a laborer. Revis v. Harris, 219 Ark. 586, 243 S.W.2d 747 (1951).

Mayor who illegally served as municipal judge while mayor was required to refund to respective government agencies the amount received as municipal judge. Revis v. Harris, 219 Ark. 586, 243 S.W.2d 747 (1951).

Nature of Remedy.

An action to recover an office is at law. Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667 (1907).

Statutory remedy against usurpation of office will be considered cumulative rather than exclusive of existing remedies, and though statutory proceeding is in lieu of the ancient common-law writ of quo warranto, it does not abolish the remedies for which that writ was created. State ex rel. Robinson v. Jones, 194 Ark. 445, 108 S.W.2d 901 (1937).

Notice.

There is no authority for a circuit court to remove a county officer without any notice; notice is the foundation of due process of law, and where there was none, an order for the removal of judge would be invalid. Anderson v. State, 266 Ark. 192, 583 S.W.2d 14 (1979).

Proceedings Not Permitted.

An action brought by a town marshal to restrain the mayor and recorder from collecting liquor licenses as being part of the marshal's duties could not be maintained under this section as a usurpation of office. Moody v. Lowrimore, 74 Ark. 421, 86 S.W. 400 (1905).

This section does not confer upon the attorney general the authority to maintain quo warranto proceedings to question the right of a licensed eclectic physician to practice, as jurisdiction over such physicians is vested in the eclectic state medical board. Schirmer v. Light, 222 Ark. 693, 262 S.W.2d 143 (1954).

Proceedings Permitted.

Although there was no common law right to a jury trial in usurpation-of-office cases where the plaintiff merely requested ouster of the alleged usurper, plaintiff has a constitutional right under Ark. Const., Art. 2, § 7, to a jury trial if he also made a claim for fees or emoluments. Hopper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997).

Resignation.

Where plaintiff attempted to withdraw his resignation by letter stating he would resign unless a majority of the council members agreed he shouldn't, and the council subsequently voted to reject the withdrawal of resignation, the jury could have reasonably concluded that the resignation was never effectively withdrawn. Hopper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997).

An instruction on resignation by implication was proper where a former city attorney represented two criminal defendants before bringing a usurpation-of-office action. Hopper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997).

Trial by Jury.

The right of trial by jury does not extend to an action brought to prevent usurper from exercising an officer or franchise. Wheat v. Smith, 50 Ark. 266, 7 S.W. 161 (1887).

In quo warranto proceedings in courts of original jurisdiction brought under statutory provisions to annul, vacate, and cancel a charter or franchise, or any other property right (not including title to public office), the right of trial by jury of issues of fact is a constitutional right. Louisiana & Nw. R.R. v. State, 75 Ark. 435, 88 S.W. 559 (1905).

Cited: Langston v. Johnson, 255 Ark. 933, 504 S.W.2d 349 (1974); May v. Edwards, 255 Ark. 1041, 505 S.W.2d 13 (1974); May v. Edwards, 258 Ark. 871, 529 S.W.2d 647 (1975); Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989).