Davis v. Wilson

• Decision Date: 23 February 1931
• Docket Number: 163,175
• Citation: 35 S.W.2d 1020,183 Ark. 271
• Parties: DAVIS v. WILSON
• Court: Arkansas Supreme Court

35 S.W.2d 1020

183 Ark. 271

DAVIS v. WILSON

No. 163, 175

Supreme Court of Arkansas

February 23, 1931

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor affirmed.

STATEMENT OF FACTS

The complaint of Sam A. Davis sets forth the facts and reads as follows: "The plaintiff, on the sixteenth day of January, 1931, filed his complaint against the above-named parties, stating that he is a taxpayer and that on the day of January, 1931, the office of Senator of the First Senatorial District became vacant; that § 6, article 5, of our Constitution requires the Governor to call a special election to fill the vacancy aforesaid; that, instead of observing the above constitutional requirements, the Hon. Harvey Parnell Governor of the State of Arkansas, attempted to fill the vacancy by appointment; that R. E. Spence has undertaken without any authority whatsoever, to serve as senator from the First Senatorial District.

"That the defendant, Lawrence E. Wilson, is about to, and unless restrained by this court will, issue vouchers in favor of R E. Spence for services rendered by the senator from the First Senatorial District, and that the defendant, J. Oscar Humphrey, is about to, and, unless restrained by this court, will, issue warrants upon said vouchers.

"That Lawrence E. Wilson is recognizing R. E. Spence as senator from the First Senatorial District, and is ordering the Secretary of State to record his name as a member of the Senate, and authorizing payment of money from the State Treasury to R. E. Spence.

"That the said R. E. Spence is not a member of the Senate because his appointment, as outlined above, is contrary to the Constitution of this State.

"Plaintiff states that it is an invasion on his rights and the rights of all other taxpayers of the State of Arkansas.

"Plaintiff prays that the defendant, Lawrence E. Wilson, be restrained from issuing vouchers to the said R. E. Spence, and that J. Oscar Humphrey be restrained from issuing warrants upon said vouchers. And, further, that Lawrence E. Wilson be restrained from recognizing him as a senator, or recording his vote."

The Auditor of the State filed an answer, in which he admitted that R. E. Spence was appointed State Senator to fill a vacancy, and that § 6, article 5, of the Constitution requires such vacancies to be filled by special election. He admitted that R. E. Spence had been recognized by the Senate as a member of that body. He further stated that § 11, article 5, of the Constitution provides that each House shall be the sole judge of the qualifications, returns and elections of its own members, and states that, in consequence thereof the action of the Senate in recognizing R. E. Spence as a member of that body cannot be questioned in the chancery court.

The chancery court found the facts as above stated. The chancellor further found that the Governor was without authority to appoint any person to fill a vacancy in the General Assembly for the reason that § 6, article 5, of the Constitution requires that such vacancies shall be filled by special election. The court further found that § 11, article 5, of the Constitution provides that each House of the General Assembly shall be the sole judge of the qualifications, returns and elections of its own members; that the Senate has passed upon the qualifications of R. E. Spence to serve as State senator and found him qualified, and that the chancery court was without jurisdiction in the premises. It was therefore decreed that the complaint of the plaintiff be dismissed for want of equity. The plaintiff has appealed.

Decree affirmed.

Sam A. Davis, for appellant.

Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.

R. W. Robins, Amicus Curiae, for appellee.

HART C. J. SMITH and MEHAFFY, JJ., dissent.

OPINION

HART, C. J., (after stating the facts).

It is well settled that courts of equity will not interfere, by injunction, to determine questions concerning the appointment or election of public officers, or their title to office; and it does not matter whether the incumbent is an officer de jure or de facto. 22 R. C. L. 113, p. 454.

This rule is in accord with the repeated holding of our own court. In Rhodes v. Driver, 69 Ark. 606, 65 S.W. 106, 86 Am. St. Rep. 116, the court quoted with approval from High on Injunctions, the following: "No principle of the law of injunctions, and perhaps no doctrine of equity jurisprudence, is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment or election of public officers or their title to office, such questions being of a purely legal nature, and cognizable only by courts of law. A court of equity will not permit itself to be made the forum of determining the disputed questions of title to public offices, or for the trial of contested elections, but will in all such cases leave the claimant of the office to pursue the statutory remedy, if there be such, or the common law remedy, by proceedings in the nature of a quo warranto." High, Injunctions (3d Ed.), No. 1312.

This doctrine has been reaffirmed in the following cases: Hester v. Bourland, 80 Ark. 145, 95 S.W. 992; Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667; Gladish v. Lovewell, 95 Ark. 618, 130 S.W. 579; Harrison v. Norton, 104 Ark. 16, 148 S.W. 497; Walls v. Brundidge, 109 Ark. 250, 160 S.W. 230, Ann. Cas. 1915C, 980; and Allen v. Sellers, 141 Ark. 206, 217 S.W. 257.

The Supreme Court of the United States is committed to the doctrine that a court of equity has no jurisdiction over the appointment and removal of public officers. In White v. Berry, 171 U.S. 366, 18 S.Ct. 917, 43 L.Ed. 199, it was held that a court of equity has no jurisdiction over the appointment and removal of public officers, whether the power of removal is vested, as well as that of appointment, in executive or administrative boards or officers, or is intrusted to a judicial tribunal. It was further held that the jurisdiction to determine the title to a public office belongs exclusively to the courts of law, and is exercised by certiorari, error or appeal, or by mandamus, prohibition, quo warranto, or information in the nature of a writ of quo warranto, according to the circumstances of the case, and the mode of procedure established by common law or by statute.

In the case of Walton v. House of Representatives, 265 U.S. 487, 44 S.Ct. 628, 68 L.Ed. 1115, it was held that a court of the United States, sitting as a court of equity, is without jurisdiction of a suit to enjoin the prosecution of a proceeding to remove a State official from office.

In the application of these settled principles of law, the court is of the opinion that the chancery court has no jurisdiction to restrain the Lieutenant Governor from recognizing R. E. Spence as a State senator or recording his vote as prayed in the complaint.

It is claimed, however, that the court has jurisdiction to restrain the Lieutenant Governor from issuing vouchers to R. E. Spence as State senator and J. Oscar Humphrey from issuing warrants upon said vouchers. This contention proceeds upon the theory that R. E. Spence was a de facto officer and, as such, was not entitled to the salary allowed to State senators.

Reliance is placed upon article 4, §§ 5 and 12, of our Constitution. Section 6 provides that the Governor shall issue writs of election to fill such vacancies as shall occur in either house of the General Assembly. Section 11 provides that each house shall be the sole judge of the qualifications, returns and elections of its own members.

On the one hand, it is sought to uphold the decree of the chancery court on the theory that constitutional provisions of this kind are found in the organic laws of several of the States, making each branch of the Legislature the judge of the election and qualifications of its members. It is claimed that such a provision is a grant of power and constitutes each the exclusive tribunal as to the qualifications of its own members. On the other hand, it is insisted that this provision should be construed only to mean that the acts of Senator Spence in the present case, in voting upon measures and acting generally as a State senator, could not be called in question in a collateral proceeding, but that he was only a de facto officer, and as such was not entitled to the emoluments which belong by law to his office; therefore it is insisted that the chancery court had the power to enjoin the issuance of a voucher of his pay as State senator to him.

In the first place, it will be seen that a decision of this question would, as to all practical purposes, settle whether Spence was an officer de jure or de facto; and, as we have already seen, a court of equity will not permit itself to be made the forum for the purpose of determining disputed questions as to the title of public offices.

It is suggested that article 16, § 13, gives the chancery court jurisdiction. That section provides that any citizen of any county city or town may institute suit in behalf of himself and all others interested to protect the inhabitants thereof against the enforcement of any illegal exaction whatever. Reference to the cases cited under the section in the Constitution will show that the section has reference to taxes levied without any warrant of law. The section is but a recognition of the well-known principles of equity, as expounded in Walls v. Brundidge, 109 Ark. 250, 160 S.W. 230, Ann. Cas. 1915C, 980, and in many other cases decided by this court, the jurisdiction of a court of equity is expressly limited to the protection of civil and property rights. Civil rights have no relation to the establishment or...