American Party of Ark. v. Brandon

• Decision Date: 27 September 1972
• Docket Number: No. 5-6159,5-6159
• Citation: 484 S.W.2d 881,253 Ark. 123
• Parties: AMERICAN PARTY OF ARKANSAS, Appellant, v. Phyllis Dillaha BRANDON, Appellee.
• Court: Arkansas Supreme Court

Page 881

484 S.W.2d 881

253 Ark. 123

AMERICAN PARTY OF ARKANSAS, Appellant, v. Phyllis Dillaha BRANDON, Appellee.

No. 5-6159.

Supreme Court of Arkansas.

Sept. 27, 1972.

Art Givens, Little Rock, Vincent E. Skillman, Jr., West Memphis, for appellant.

Thomas Glaze, Little Rock, for appellee.

PER CURIAM.

Appellee, a citizen, resident and taxpayer of Pulaski County, Arkansas, and a member of the Pulaski County Board of Election Commissioners, brought an action against Kelly Bryant, Secretary of State, praying that he be commanded to omit the names of any nominees and presidential electors of appellant from his certification of candidates to the respective county boards of election commissioners. Appellee alleged that petitions filed to qualify the party as a 'political party' under Ark.Stat.Ann. § 3-101(a) (Supp. 1971), being Article 1, Section 1 of Act 465 of 1969, as amended by Section 1 of Act 261 of 1971, were not timely filed and that after the Secretary of State had found them insufficient he had granted appellant an unauthorized 30 days' extension for the filing of additional petitions to meet the statutory requirements of Ark.Stat.Ann. § 3-101(a).

The Secretary of State filed a special demurrer on the ground that the circuit court lacked jurisdiction of the subject matter, because the jurisdiction for review of the sufficiency of such petitions was vested in the Supreme Court under Amendment 7 to the Arkansas Constitution. Appellant was permitted to intervene in this action, but filed no written pleading until after judgment was rendered. The circuit judge's memorandum opinion, the judgment and appellant's brief all recite that appellant joined in the demurrer to the jurisdiction. The demurrer was overruled and the relief sought by appellant was granted by the circuit court. Appellant filed an answer after the entry of the judgment, but subsequently filed notice of this appeal, and, when appellee's motion to dismiss the appeal as premature was presented here, stated that the pleadings filed subsequent to the judgment were waived. In stating the case in its brief filed here, appellant recited that the circuit court, before entering its judgment, stated that it must take all allegations of the complaint as confessed, because the intervenor and defendant had elected to stand upon their demurrer and that appellant appeals from the overruling of the demurrer. Of course, such an appeal would be premature if intervenor had not elected to stand upon the demurrer. State ex rel. Arkansas Publicity and Parks Commission v. Woodward, 228 Ark. 856, 310 S.W.2d 803; Radford v. Samstag, 113 Ark. 185, 167 S.W. 491; see also, Arkansas State Board of Architects v. Larsen, 226 Ark. 536, 291 S.W.2d 269; Allred v. National Old Line Ins. Co., 245 Ark. 893, 435 S.W.2d 104.

Appellant relies upon and argues only two points for reversal, both of which relate only to the jurisdictional question raised by the demurrer in the trial court. It asserts that exclusive original jurisdiction of all cases testing the sufficiency of state-wide petitions is vested in this court, either by Amendment 7 itself or by Act 465 of 1969 as amended by Act 261 of 1971. No other question is presented by appellant.

We agree with the circuit court. Amendment No. 7 does not purport to vest any original jurisdiction in this court in any proceeding relating to anything except initiated legislation that would have statewide effect or reference of Acts of the General Assembly to the voters of the state. The application of the amendment is limited to those measures. See Dingle v. City of Eureka Springs, 242 Ark. 382, 413 S.W.2d 641; Armstrong v. Sturch, 235 Ark. 571, 361 S.W.2d 77; Townes v. McCollum, 221 Ark. 920, 256 S.W.2d 716; Scroggins v. Kerr, 217 Ark. 137, 228 S.W.2d 995.

Appellant then argues that the sentence 'The sufficiency of any petition filed under the provisions hereof may be challenged in the same manner as provided by law for the challenge of Initiative and Referendum petitions,' contained in Article 1, Section 5(c) of Act 465 of 1969, as amended by Section 3 of Act 261 of 1971 (Ark.Stat.Ann. § 3-105(c) (Supp.1971)) vests exclusive original jurisdiction in this court. That section relates to the filing of petitions to place the name of independent candidates on the ballot. Even if we should construe that sentence to apply to any and all petitions filed under the election code (Ark.Stat.Ann. §§ 3-101-3-1306 (Supp.1971)) rather than to those specifically mentioned in the section of which it is a part, we could not sustain appellant's position. This court has no original jurisdiction except that expressly conferred by the constitution and that jurisdiction cannot be enlarged by the legislature. Article 7, Section 4; Article 7, Section 11, Constitution of Arkansas; Ex parte Levy, 204 Ark. 657, 163 S.W.2d 529; Ft. Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S.W. 481; Harding v. State, 94 Ark. 65, 126 S.W. 90; Jones, Ex parte, 2 Ark. 93; see also, Berry v. Hall, 232 Ark. 648, 339 S.W.2d 433.

Inasmuch as the circuit court had jurisdiction of the action brought by appellee and appellant stood upon its demurrer, we must affirm the judgment.

BYRD, J., dissents.

BYRD, Justice (dissenting).

During the 1970 election the American...