Lewis v. Conlee, 75--99

• Decision Date: 27 October 1975
• Docket Number: No. 75--99,75--99
• Citation: Lewis v. Conlee, 529 S.W.2d 132, 258 Ark. 715 (Ark. 1975)
• Parties: Harley B. LEWIS, Appellant, v. Coolidge CONLEE, Mayor, and City Council of Forrest City, Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 132

529 S.W.2d 132

258 Ark. 715

Harley B. LEWIS, Appellant, v.Coolidge CONLEE, Mayor, and City Council of Forrest City Arkansas, Appellee.

No. 75--99.

Supreme Court of Arkansas.

Oct. 27, 1975.

Rehearing Denied Nov. 24, 1975.

Killough & Ford by Robert M. Ford, Wynne, for appellant.

Knox Kinney, Forrest City, for appellees.

HARRIS, Chief Justice.

On August 17, 1948, the City Council of Forrest City passed OrdinanceNo. 611, entitled, 'An Ordinance fixing the time for the filing of referendum petitions as provided for by Amendment No. 7 to the Constitution of the State of Arkansas, and for regulating the procedure thereon.'Pertinent provisions of the Ordinance read as follows:

'SECTION 1.All referendum petitions under Amendment No. 7 to the Constitution of the State of Arkansas must be filed with the City Clerk within thirty days after the passage of the measure upon which the referendum is sought.* * *

'SECTION 3.If the City Council finds that such petition is signed by the requisite number of petitioners, it shall order a special election to determine by a vote of the qualified electors whether the ordinance shall stand or be revoked.The date for such election shall be not less than ten days after the order therefor has been made by the Council, and said election shall be had and conducted as general municipal elections held in the City of Forrest City.'

Further provisions require that any ordinance referred to the people and defeated shall be expunged from City Council records.An emergency clause is also attached.

On October 4, 1949, the City Council passed OrdinanceNo. 634, entitled, 'An Ordinance to create a Board of Civil Service Commissioners of the City of Forrest City, Arkansas, to prescribe the manner of conducting trials by the Civil Service Commission, providing a right of appeal, and for other purposes.'

On January 7, 1975, the Council again passed an ordinance, being OrdinanceNo. 1340, entitled, 'An Ordinance to repeal the Civil Service Commission; to provide for appointment of the Chief of Police and Fire Chief, to provide redress of grievances; and for other purposes.'

Appellant, Harley B. Lewis, Secretary of the Civil Service Commission of Forrest City, along with other qualified electors of the City, prepared, circulated, and filed a petition protesting the passage of the Ordinance and petitioning that the Ordinance be referred to the electors of the City as provided by law.This petition was filed with the City Clerk on January 20, 1975, who found that the petition was sufficient, a requisite number of petitioners having signed, for referral.Thereafter, at its regularly scheduled meeting on February 4, 1975, the Council, recognizing the sufficiency of the petitions, passed ResolutionNo. 321, referring OrdinanceNo. 1340 to the next regular general election to be held on November 2, 1976.

Thereafter, Lewis, as Secretary of the Civil Service Commission, instituted suit in the Circuit Court of St. Francis County, seeking a writ of mandamus, and following a show cause order to the Council, a hearing was conducted on February 27, 1975, and the court entered its order dismissing the complaint with prejudice.From this judgment, appellant brings this appeal.For reversal, two points are relied upon to the effect that the court erred in holding that a writ of mandamus will not issue under the circumstances, and that the court erred in sustaining the appellee's arbitrary, capricious, and unreasonable application of the intent and purpose of Amendment No. 7 to the Constitution of the State of Arkansas by setting the election date twenty-one months from the date of the order.Since these are related points, we discuss them together.

OrdinanceNo. 1340 first repeals OrdinanceNo. 634, which sets up the Civil Service Commission and thereafter provides that the Chief of Police and Fire Chief shall be appointed by the Mayor, subject to approval by the City Council, and that these police and fire officials, respectively, have sole authority to establish ranks within the departments, and hire and fire personnel therein; that any person aggrieved shall have the right to request a hearing before the City Council, whereupon the Council shall forthwith set a hearing upon said matter at a subsequent meeting of the Council.

In dismissing the complaint, the trial court made, inter alia, the following findings:

'6.That Amendment No. 7 of the Constitution of the State of Arkansas provides that if the referendum power is invoked as to any measure passed by a city or town council, such city or town council may order election upon said referendum at either regular or special election; that OrdinanceNo. 611 of the City of Forrest City provides that the date for such election be not less than ten (10) days after the order therefor has been made by the council; and the order therefor in this case has been made by the Council for a special date more than ten days after such order.

'7.That the specific date for setting of such election is a matter of legislative discretion, which has been exercised by the City Council in this case; a Writ of Mandamus will not issue to control a public officer or legislative body in a discretionary act.'

Pertinent provisions of Amendment No. 7 provide:

'Municipalities may provide for the exercise of the initiative and referendum as to their local legislation.* * *

'All measures initiated by the people, whether for the State, county, city or town, shall be submitted only at the regular elections, either State, congressional or municipal, but referendum petitions may be referred to the people at special elections to be called by the proper official, and such special elections shall be called when fifteen per cent of the legal voters shall petition for such special election, and if the referendum is invoked as to any measure passed by a city or town council, such city or town council may order a special election.'

We are of the opinion that the court erred in not granting the petition for writ of mandamus.It is very true, as pointed out by the learned circuit judge, that the matter of setting a date for the election is normally a matter of legislative discretion--but only to a degree.In the present instance, it would appear that the date set would, in effect, nullify the intent of Amendment No. 7, and the intent of OrdinanceNo. 611, which was passed by the Council, pursuant to the provisions of Amendment No. 7.¹

Appellees depend upon the fact that OrdinanceNo. 611, though providing that a special election shall not be less than ten days after the order therefor has been made by the Council, makes no requirement that such election shall be set at any particular time thereafter.This is true, but we are confident that the electors, in passing Amendment No. 7, had in mind that controversial legislation should be acted upon by the voters within a reasonable time.In the case of Cochran, Mayor v. Black, 240 Ark. 393, 400 S.W.2d 280, this court succinctly stated our views on Amendment No. 7, as follows:

'We are firmly...