Ellis v. Rockefeller
| Decision Date | 03 September 1968 |
| Docket Number | No. 5--4631,5--4631 |
| Parties | Frank ELLIS et al., Appellants, v. Winthrop ROCKEFELLER et al., Appellees. |
| Court | Arkansas Supreme Court |
Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellees.
The question involved on this appeal is whether the State Board of Election Commissioners, in appointing the third member of each County Board of Election Commissioners, must appoint those persons selected by the majority party or whether the State Board of Election Commissioners has discretion in the appointment of the third member.
This action was commenced by appellants, Frank Ellis, Franklin S. Garrison, T. O. Porter, Chester Andres, Maxine G. Reed, Marguerite Turner and James W. Hurley, to mandamus the State Board of Election Commissioners to appoint them as third members of their respective County Boards to fill existing vacancies. The allegations are that each had been designated by the Republican County Central Committee of his respective county as the third member of the County Board of Election Commissioners; that the Republican Party is the majority party as defined in Initiated Act No. 3 of 1948; and that at a meeting of the State Board of Election Commissioners on August 1, 1967, they were nominated as the third members of their respective County Boards of Election Commissioners but the State Board of Election Commissioners failed and refused to appoint them.
Testimony proffered at the hearing shows that at the August 1, 1967 meeting of the State Board, called to fill vacancies, appellants were nominated as the third members of their respective County Boards, and persons alleged to be members of the minority party (Democrats) were also nominated. By vote of 6 to 2 along party lines with the Governor as chairman abstaining, the State Board refused to nominate appellants and by a vote of 6 to 2 appointed those persons alleged to be Democrats. However, because the majority and minority parties differed on the interpretation of the law as to which party was to control appointment of the third members, the appointments made by the State Board have not been certified by the Governor, the ex officio chairman, and the Secretary of State, the ex officio secretary of the Board.
The State Board and the County Boards of Election Commissioners were set up under Initiated Act 3, of 1948. So far as here pertinent, it provided:
'SECTION 1. For the purpose of this Act, the majority party shall be construed to be that political party polling, in the State of Arkansas, the greatest number of votes for Governor in the last preceding general election and the minority party shall be construed to be that political party polling, in the State of Arkansas, the second greatest number of votes for Governor in the last preceding General Election.
SECTION 2. The Governor, the Attorney General, the Secretary of State, the State Chairman of the State Central Committee of the majority party and the State Chairman of the State Central Committee of the minority Party shall constitute the State Board of Election Commissioners. The Governor shall act as ex-officio Chairman of such Board and the Secretary of State shall act as ex-officio Secretary of such Board and shall keep the records of said Board.
The County Chairman of the County Central Committee of the majority party and the County Chairman of the County Central Committee of the minority party shall be members of the County Board of Election Commissioners and together with one additional or third member to be appointed by the State Board of Election Commissioners, shall constitute the entire membership of the County Board of Election Commissioners for each of the several Counties in Arkansas. The third member of each County Board of Election Commissioners shall be appointed by the State Board of Election Commissioners at least ninety (90) days before any General Election for State, District or County office.'
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'SECTION 3. It shall be the duty of the County Boards of Election Commissioners not less than five (5) days preceding a general election to select and appoint three (3) judges and two (2) clerks for each voting precinct in their respective Counties and to perform the other duties prescribed, provided however, that two (2) judges and one (1) clerk at each precinct shall be chosen and appointed by the two members of the County Board of Election Commissioners representing the majority party and one (1) judge and one (1) clerk at each precinct shall be chosen and appointed by the member of the County Board of Election Commissioners representing the minority party. The County Boards of Election Commissioners shall immediately upon performing such duties prepare, publish and post in a public place in the Sheriff's office and in the County Clerk's office of each County their respective list of appointees as judges and clerks of election.
In the event the majority or minority representatives on such County Boards of Election Commissioners do not select and appoint their full quota of judges and clerks for each voting precinct then The membership of the State Board of Election Commissioners was increased by the General Assembly, Acts 1951, No. 74, to nine members, by adding the Lieutenant Governor, the State Auditor, the State Treasurer, and the Commissioner of State Lands. Section 3 of Initiated Act No. 3 of 1948 was amended by the General Assembly, Acts 1963, No. 477, to read:
the County Boards of Election Commissioners by majority vote may fill such vacancies, provided, that in no event shall all of the judges or both of the clerks at any voting precinct be members of the same political party.' (Emphasis supplied.)
'It shall be the duty of the County Board of Election Commissioners, not less than five (5) days preceding a general election to select and appoint three (3) judges and two (2) clerks for each voting precinct in their respective Counties and to perform the other duties prescribed, provided however, that two (2) judges and one (1) clerk in each precinct shall be chosen and appointed by two (2) members of the County Board of Election Commissioners representing the majority party and one (1) judge and one (1) clerk at each precinct shall be chosen and appointed by the members of the County Board of Election Commissioners representing the minority party. Provided further, that if there are no registered or known members of the minority party in any precinct or precincts within a county the minority party member of the County Board of Election Commissioners is hereby prohibited from naming any person to represent such minority party as a judge or clerk in any such precinct or precincts who is a member of the majority party, and in such event, the County Board of Election Commissioners shall be a majority vote name the judge and the clerk allotted the minority party for any such precinct or precincts. The County Board of Election Commissioners shall immediately upon performing such duties prepare, publish and post in a public place in the Sheriff's office and in the County Clerk's office of each County their respective list of appointees as judges and clerks of elections.
In the event the majority or minority representatives on such County Boards of Election Commissioners do not select and appoint their full quota of judges and clerks for each voting precinct, as authorized hereinbefore then the County Board of Election Commissioners by majority vote may fill such vacancy, provided, that in no event shall all of the judges or both of the clerks at any voting precinct be members of the same political party unless there are no members of the minority party registered in said precinct.' (Emphasis supplied.)
Our law holds that the writ of mandamus will not be granted to review the exercise of discretion of an officer or official board, but can be invoked only to compel the officer or board to exercise such discretion. Better Way Life Ins. Co. v. Graves, 210 Ark. 13, 194 S.W.2d 10 (1946). To sustain their position here appellants point to section 3 of Initiated Act No. 3 of 1948 as amended, which provides that two judges and one clerk in each precinct shall be chosen and appointed by 'two (2) members of the County Board of Election Commissioners representing the majority party and one (1) judge and one (1) clerk at each precinct shall be chosen and appointed by the members of the County Board of Election Commissioners representing the minority party.' Based upon this language, appellants contend that the third member must be a member of the political party designated as the majority party by section 1 of...
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