The opinion
Darrell Hickman, Justice, dissenting. I would affirm the chancellor’s decree.
A valid ordinance, No. 205, provided that the marshal’s office of Greenbrier was an appointive one. That ordinance was passed when Greenbrier was a second class city. To me, it is insignificant whether Greenbrier knew it was a second class city.
It was not until shortly before the general election of 1978 that the Greenbrier City Council, then knowing for certain that it was a second class city, passed Ordinance No. 78-2, providing that the office of marshal would be an elective one. The parties agree that this ordinance was invalid. But it was pursuant to this invalid ordinance that Harry Snowden was elected city marshal. He ran as an independent, was the only qualified candidate and was certified the winner.
The majority finds the valid ordinance, No. 205, is without effect , because it was passed before Greenbrier knew it was a second class city. A city of the second class must elect its marshal, unless an ordinance provides otherwise. That, of course, is the case we have before us. There was a valid ordinance that provided otherwise.
The chancellor held that since the ordinance passed in September was invalid, the City of Greenbrier was where it had been before—with an ordinance which provided for the marshal be appointed. I agree with that decision. How can an election, based on an invalid law, be legal? Furthermore, all valid ordinances of a town remain in effect when a town is reclassified as a city. Otherwise, there would be chaos and no law. I have no doubt that we would have upheld the ordinance which provided for the marshal to be appointive, if that question was presented to us. That leads me to conclude that the chancellor was correct.
There is really no similarity between this case and the case of City of Augusta v. Angelo, 225 Ark. 884 , 286 S.W.2d 321 (1956). In the Angelo case the City of Augusta tried to abolish an existing office.