Jones v. Clark , 278 Ark. 119 ( 1983 )

George Rose Smith, Justice.

This suit was brought by the appellants, as citizens and taxpayers, to obtain a declaratory judgment holding that the appellee, Steve Clark, is in violation of Article 6, Section 22, of the Constitution of Arkansas as long as he serves as attorney general and simultaneously holds a commission as a captain in the United States Army Reserve. (By an amended pleading the plaintiffs sought alternative relief in quo warranto, but we need not explore that avenue.) The appellee raises assorted defenses to the suit: That the plaintiffs lacked standing to sue, that a declaratory judgment is not appropriate, that there is in fact no violation of Article 6, Section 22, and that if there is such a violation then Section 22 is void under two clauses of the United States Constitution.

The pertinent facts were established at a brief trial. In 1968 Mr. Clark was appointed by the President of the United States as “a Reserve Commissioned Officer in the Army of the United States.” Mr. Clark then went to law school. After that he served several tours of active duty as a reserve officer before entering the practice of law in 1976. As a reserve officer he still attends a monthly drill assembly and a two-week period of summer training, for which he is paid by the United States. He was elected attorney general in 1978 and was serving in his second term when this case was tried. He has since been elected to a third term.

The circuit judge recognized the plaintiffs’ standing to bring this suit, but he held that, procedurally, a declaratory judgment would not settle the controversy and, substantively, no violation of Article 6, Section 22, exists. We disagree with both his conclusions.

Procedurally, the taxpayers’ complaint asserts that it is filed under Article 16, Section 13, of our constitution, which provides that any citizen may bring suit to protect the public against the enforcement of illegal exactions. In a similar situation involving dual office-holding we decided that under this constitutional provision complaining taxpayers are entitled to injunctive relief against the illegal spending of public funds. Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963). That suit for an injunction was properly in the chancery court, but the constitution does not specify the court in which the taxpayer’s cause of action may be asserted nor the form of action that is available to him. When, as here, there will be an established illegal exaction if the public officer persists in a constitutional violation, an action in the circuit court for a declaratory judgment is well chosen. A declaratory judgment is “a remedy peculiarly appropriate to controversies between private citizens and public officials about the meaning of statutes.” Culp v. Scurlock, 225 Ark. 749, 284 S.W.2d 851 (1955). That statement applies equally to controversies about the interpretation of the constitution. Moreover, as we went on to say in Culp: “Since the effect of a declaratory judgment in this case will be to terminate an actual controversy in a matter of public interest, it is manifestly desirable that the case be decided on its merits.” Here too that is true.

Substantively, the language of Article 6, Section 22, is too simple, too clear, too pointed, to be misunderstood:

The Treasurer of State, Secretary of State, Auditor ■ of State and Attorney General shall perform such duties as may be prescribed by law; they shall not hold any . other office or commission, civil or military, in this State or under any State, or the United States, or any other power, at one and the same time ....

Here Mr. Clark seeks to hold at one and the same time the office of attorney general and a military commission under the United States. There could be no more clear-cut violation of the constitutional prohibition, if it stood alone. There must also be considered, however, the language of Article 19, Section 26:

Militia officers, officers of the public schools and notaries may be elected to fill any executive or judicial office.

The question is, does the reference to “militia officers” include a United States army reserve officer, who is appointed by the president and is not subject to any control by the State of Arkansas? The answer must be, No. The first significant reference to the militia is in the United States Constitution, Article 1, Section 8, which declares that Congress shall have the power:

To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers .... [Our italics.]

By the explicit language of the Constitution the president cannot appoint an officer of the militia. Mr. Clark’s presidential appointment therefore did not make him an officer of the militia.

Additionally, Article 6, Section 6, of our own constitution makes the governor the commander-in-chief of the state’s military forces, except when in federal service. Article 11, Section 1, defines the militia as consisting of all able-bodied male residents of the state between the ages of 18 and 45. The implementing statutes distinguish between the organized militia (the National Guard) and the unorganized militia (the other specified resident males). Ark. Stat. Ann. § 11-102 (Repl. 1976). Neither category embraces the United States army reserve. Thus both the United States Constitution and the Arkansas Constitution compel the conclusion that Mr. Clark is not a militia officer as contemplated by Article 19, Section 26. (We do not reach the appellants’ argument that the statement in that section that militia officers “may be elected” to any executive or judicial office means that they as candidates may be elected but cannot serve without relinquishing their office in the militia.)

Finally, there is no substance to the appellee’s argument that Section 22 of Article 6 violates the United States Constitution. Since the militia is ordinarily an arm of the state government, the state may without any denial of the equal protection of the laws permit a militia officer to seek or hold an elective office while denying that privilege to an officer whose allegience is to some other sovereign. Such a classification is manifestly reasonable. Moreover, Mr. Clark voluntarily sought the office of attorney general, as defined by the constitution, and is not in a position to accept the benefits of the office and at the same time disclaim its restrictions. See Johnson v. Darnell, 220 Ark. 625, 249 S. W.2d 5 (1952). The argument that the limitation upon the four constitutional officers impairs the nation’s ability to wage war is not of sufficient merit to call for discussion.

This opinion will serve as a judgment declaring the law. The trial court’s judgment is reversed, and the cause is remanded for any further proceedings that may be appropriate if the declared violation of the constitution continues.

Reversed and remanded.

Adkisson, C.J., dissents.