Rockefeller v. Purcell

John A. Fogleman, Justice.

Generally I agree with the views stated by Mr. Justice Byrd in his dissenting opinion, but I feel that there are other compelling reasons why action of (-he trial court should be affirmed.

The pleadings in this case indicate that the petitioners and appellants are three members of the State Board of Election Commissioners who brought the action in that capacity and as a class on behalf of the Republican party in Arkansas and three persons who claim title to the office of election commissioner in three counties in the state. The petition filed in the lower court was for mandamus against the remaining six members of the State Board of Election Commissioners and the three persons who hold office as election commissioners by appointment of the State Board in the three counties in question. The allegations of the petition clearly state that the individual election commissioners in these counties were named by a majority of the State Board of Election Commissioners over the objection of the petitioning members, who proposed the individuals who are among the petitioners and appellants. It is further alleged that the Chairman of the State Board ruled that the person nominated was not qualified to serve and that the person nominated by the petitioning minority of the State Board of Election Commissioners had been elected. This ruling by the Chairman was appealed and overruled by a majority of the full board. The allegations pf the petition with respect to the particular respondent county election commissioners have to do with their previous activities indicating membership in, or support of, the Democratic party as a basis for the contention that they could not in any circumstances represent the Republican party in the State of Arkansas or in their respective counties. The allegation is made that the action of the State Board of Election Commissioners by its majority is void. It is further alleged that the only persons qualified to serve as third members of these respective County Boards of Election Commissioners are the petitioners nominated by the minority of the election 'commission.

The writ sought would command the Secretary of the State Board of Election Commissioners to notify the petitioners nominated by the minority of the commission of their election to the office of third member of the Board of Election Commissioners in their respective counties and to receive and file their oaths of office and do all further things necessary to insure that they be permitted to serve as third members of their respective boards of election commissioners.

It was clearly held, and properly so, in Ellis v. Rockefeller, 245 Ark. 53, 431 S.W. 2d 848, that the exercise of discretion in appointing the third member of each county board of election commissioners could not be controlled by mandamus. Inapplicability of man-damns to control discretionary acts of boards and commissions is not a recent development, but is a general rule of law and has been stated and applied in many cases. See, e.g., State v. Marianna, 183 Ark. 927, 39 S.W. 2d 301; Refunding Board of Ark. v. National Refining Co., 191 Ark. 1080, 89 S.W. 2d 917; Better-Way Life Ins. Co. v. Graves, 210 Ark. 13, 194 S.W. 2d 10; Garland Power & Development Co. v. State Board of Railroad Incorporation, 94 Ark. 422, 127 S.W. 454; Miller v. Tatum, 170 Ark. 152, 279 S.W. 1002. Mandamus will not lie to correct an erroneous decision already made. Dotson v. Ritchie, 211 Ark. 789, 202 S.W. 2d 603; Jackson v. Collins, 193 Ark. 737, 102 S.W. 2d 548.

This court has spoken positively on the proposition of controlling the discretion of a state board in language that cannot be misunderstood. For instance, in Refunding Board of Arkansas v. National Refining Co., 191 Ark. 1080, 89 S.W. 2d 917, this court said:

“The board is required, in the discharge of its duties, not only to weigh and determine facts, but to expound the various provisions of the law under which it operates, and the board’s judgment in these respects is not subject to control by mandamus or injunction. Riverside Oil Co. v. Hitchcock, 190 U.S. 316, 23 S. Ct. 698, 47 L. Ed. 1074; Ness v. Fisher, 223 U.S. 683, 32 S. Ct. 356, 56 L. Ed. 610; Bates & Guild Co. v. Payne, 194 U.S. 106, 24 S. Ct. 595, 48 L. Ed. 894.”

The extent to which review of an erroneous decision within the discretion of a board is denied is illustrated in Democrat Printing & Lithographing Co. v. Parker, 192 Ark. 989, 96 S.W. 2d 16, in the following language:

# Discretion as used in respect to executive state officials means not only discretion on questions of fact, but on mixed questions of law and fact. Whether such official decides the question right or wrong is immaterial. Having the power to decide at all carries with it the duty to decide as he perceives the law and the facts to be, and the courts have no power to review his determination by mandamus. We have heretofore, in effect, so decided. See Pitcock v. State, 91 Ark. 527, 121 S.W. 742, 134 Am. St. Rep. 88. The conclusion reached in the Pitcoch case, supra, finds support in Riverside Oil Co. v. Hitchcock, 190 U.S. 316, 23 S. Ct. 698, 47 L. Ed. 1074. See, also, Branaman v. Harris (C.C.) 189 F. 461.”

In order to command the Secretary of the State Board of Election Commissioners to perform the acts petitioners seek to require would certainly require a review of the discretionary acts of the State Board of Election Commissioners and the denial of this relief by the circuit judge, on motion, was certainly proper and appropriate.

Petitioners also seek declaratory relief under Ark. Stat. Ann. § 34-2501 (Repl. 1962). A more obvious attempt to obtain an advisory opinion from the courts by this action could hardly be imagined. It is not the purpose of declaratory judgment acts to authorize the rendition of advisory opinions. This court has clearly stated that in order to be entitled to declaratory relief, one must have a legally protectable interest in the controversy and that the issue involved must be ripe for judicial determination. Andres v. First Ark. Development Finance Corp., 230 Ark. 594, 324 S.W. 2d 97.

The declaratory judgment act does not create any cause of action. It has also been held that it is intended to supplement rather than supersede ordinary causes of action. City of Cabot v. Morgan, 228 Ark. 1084, 312 S.W. 2d 333. The act does not attempt to enlarge or alter the jurisdiction of any court. Jackson v. Smith, 236 Ark. 419, 366 S.W. 2d 278; Catlett v. Republican Party, 242 Ark. 283, 413 S.W. 2d 651. Furthermore, a “justiciable controversy” must be a controversy as to a subject matter over which the court has jurisdiction. See Cowan v. Cowan, 254 S.W. 2d 862 (Tex. 1952).

The declaratory judgment act is merely procedural. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S. Ct. 461, 81 L. Ed. 617; Shelly Oil Co. v. Phillips, 339 U.S. 667, 70 S. Ct. 876, 94 L. Ed. 1194. No court takes jurisdiction under this act, the subject matter of which it would not have jurisdiction of in a remedial action. The act merely enables the court to take jurisdiction at a point earlier in time than it would do under ordinary remedial rules and procedures. See In Re State, 264 NW. 633 (Wis. 1936).

The declaratory relief sought in this action is a finding that the three respondent election commissioners are ineligible for lack of the qualifications to hold the position of third member of their respective county boards, and that the three petitioning nominees be declared to have been elected. The basis of the alleged ineligibility is their alleged inability to represent the Republican party.

The position of county election commissioner is a public office. Warren v. McRae, 165 Ark. 436, 264 S.W. 940. Neither of the petitioners has any legally protectable interest in the office which gives them the right to declaratory relief. In order to have been entitled to declaratory relief, it would be necessary that one of the petitioners have a legal right to the office in question. It is absurd to say that persons nominated for the office, but not elected by the State Board of Election Commissioners, have any legal protectable interest in the office. The contention that the nominees of a political party had to be accepted by the State Board of Election Commissioners as elected was specifically rejected in Ellis v. Rockefeller, 245 Ark. 53, 431 S.W. 2d 848. One who received the second largest number of votes does not become entitled to an office when it is shown that the winner was ineligible. Clark v. Porter, 223 Ark. 682, 268 S.W. 2d 383.

The only ones having right to question the title of members of a county board of election commissioners are the prosecuting attorney and the party entitled thereto. Ark. Stat. Ann. §§ 34-2201 — 04 (Repl. 1962). Even in the absence of statute, the prosecuting attorney can bring proceedings to oust ineligible persons from office. State v. Jones, 194 Ark. 445, 108 S.W. 2d 901. This court has clearly held that any such action may be brought either by the prosecuting attorney or the person entitled to the office. State v. Sams, 81 Ark. 39, 98 S.W. 955; State v. Jones, supra; Barnett v. McCray, 169 Ark. 833, 277 S.W. 45.

For the purposes of this proceeding, the county election commissioners are certainly county officers. Smith v. State, 211 Ark. 112, 199 S.W. 2d 578.

In such a proceeding, it is clear that before one can question the title to an office, he has the burden of proving that he himself is entitled thereto. Jones v. Duckett, 234 Ark. 990, 356 S.W. 2d 5.

An action to contest a person’s eligibility to hold an office is properly brought under Ark. Stat. Ann. §§ 34-2201 — 04. Jessup v. Hancock, 238 Ark. 866, 385 SW. 2d 24.

Courts should refuse to render a declaratory judgment when it will be only advisory in character or fruitless or the judgment would not afford specific relief to a litigant. Cook v. Sikes, 210 Ga. 722, 82 S.E. 2d 641 (1954). The parties seeking to maintain the action must have the capacity to sue and a right which is justiciable. Cook v. Sikes, supra.

The declaratory judgment act has been held to confer no right on litigants, taxpayers, citizens or voters of a party to bring a suit to contest the qualifications of a person to hold office. Friley v. Becker, 300 Ky. 749, 190 S. W. 2d 355 (1945). An unsuccessful nominee for public office, claiming that he was unopposed because his successful opponent was illegally nominated, cannot be issued a certificate of election, therefore he is not entitled to relief under the declaratory judgment act because he has no legal protectable interest at stake and the judgment would not constitute specific relief to either party. State v. Thatch, 359 Mo. 122, 221 S.W. 2d 172 (1949). A defeated candidate does not have a justiciable interest sufficient to maintain a judgment declaring the successful candidate ineligible for office. Kamas v. Stepan, 197 S.W. 2d 193 (Tex. Civ. App. 1946).

A determination of the question of title to public office in an action for declaratory judgment is binding only on the parties to that action and no one else. Kilroy v. Connor, 324 Mass. 238, 85 N.E. 2d 441 (1949); Manlove v. Johnson, 198 Wash. 280, 88 P. 2d 397 (1939). A declaratory judgment that one elected to office is ineligible will not terminate the controversy. Bloome v. Juergensmeyer, 344 Ill. App. 625, 101 N.E. 2d 851 (1951).

It has even been held that the members of a board have no standing in a declaratory judgment proceeding, either as citizens and taxpayers or in their official capacity, to question the validity of the appointment of another member who has assumed office. Marshall v. Hill, 47 Del. 478, 93 Atl. 2d 524 (1952). See, also, Manlove v. Johnson, supra.

Let us suppose, for instance, the Pulaski Circuit Court ultimately finds that the members of the respective county boards, whose eligibility is questioned, are not qualified to hold the office. What will the court do about it? It cannot, at the suit of petitioners, oust the present holders of the office and a declaratory judgment ■would not be binding upon those who are not parties to this action, or in a proper action, to oust them.

Clearly, the circuit judge properly dismissed the declaratory judgment proceeding because no petitioner had a legally protectable interest to give him standing to seek the relief.

There is a further reason why the trial court’s action was proper. In order for this action to have been an appropriate one for declaratory judgment, the controversy must have been of a character presenting a real and substantial controversy admitting of specific relief through a decree of a conclusive character directing, and not suggesting, what the parties may or may not do. Smith v. American Asiatic Underwriters, Federal, Inc., 127 F. 2d 754, adhered to, 134 F. 2d 233 (9th Cir. 1942); State v. Thatch, 359 Mo. 122, 221 SM. 2d 172 (1949); Chas. L. Harney, Inc. v. Contractors’ State License Board, 238 P. 2d 637 (Cal. App. 1951). The Pulaski Circuit Court cannot enter any such judgment.

I cannot help but believe that the result in this case is due to the inordinate speed with which this case was submitted, briefed, argued and decided. It was first filed on Friday, 16 days after the date of the circuit court judgment. The briefs were sketchy and not of the standard that would ordinarily be expected from the able counsel representing the respective parties. Oral argument was had on Monday afternoon, after the members of the court had had no more than two hours for reading the briefs of appellees. These briefs had to be prepared by the respective attorneys for appellees between the time they reached their offices after the hearing of a motion to advance in this court on Friday afternoon and 10 am. Monday. In oral argument, each side was allowed only 30 minutes. Since the parties were from different counties and represented different litigants, the time was scarcely adequate for informative argument. I cannot help but believe that the result would have been materially different if tbe cause could have been adequately briefed, fully argued and more deliberately considered. It was conceded by appellants’ counsel in oral argument that the decision of this case could not possibly affect the conduct of the coming general election in any of the three counties involved unless this court declared that the nominees receiving the smaller number of votes in the State Board of Election Commissioners were declared to have been entitled to the office. He frankly admitted that he had no authority whatever for any such action by this court. I dare say there is none. There is no such implication in the majority’s per curiam opinion. Consequently, even if the Pulaski Circuit Court moves with all possible dispatch, and, even if the Pulaski Circuit Court’s judgment can have the effect of ousting the present incumbents, it would be impossible for the State Board of Election Commissioners to meet, name successors and have them commissioned and qualified in time to act in matters pertaining to this election. It is even possible, under such circumstances, that a stalemate would result in the three boards of election commissioners involved. Thus, no really useful purpose has been served by the haste in the handling and decision of this appeal.

I would affirm the judgment of the circuit court.