May v. Edwards

• Decision Date: 11 February 1974
• Docket Number: No. 73--252,73--252
• Citation: 505 S.W.2d 13,255 Ark. 1041
• Parties: John O. MAY, Appellant, v. Dell EDWARDS, Appellee.
• Court: Arkansas Supreme Court

Page 13

505 S.W.2d 13

255 Ark. 1041

John O. MAY, Appellant, v. Dell EDWARDS, Appellee.

No. 73--252.

Supreme Court of Arkansas.

Feb. 11, 1974.

Jack L. Lessenberry, Little Rock, for appellant.

Clifton H. Hoofman, John M. Fincher, John T. Harmon, N. Little Rock, for appellee.

FOGLEMAN, Justice.

John O. May was serving as a duly elected and qualified alderman for the second ward of the City of North Little Rock when he was found guilty of the crime of abortion after a jury trial in the Circuit Court of Pulaski County. A sentence of four years' imprisonment and $1,000 fine was entered on May 23, 1972. On June 26, 1972, the North Little Rock City Council elected Dell Edwards to the position theretofore held by May. May promptly instituted a suit against Edwards and the council in the Circuit Court of Pulaski County, seeking to oust Edwards. It is stipulated that the judgment entered in that case declared that May was ineligible to serve as alderman and that Dell Edwards was the properly installed alderman of the second ward. No appeal was taken from that judgment, so it has become final.

The judgment of conviction in the abortion case was reversed here on April 9, 1973, and the case was remanded for a new trial. See May v. State, 254 Ark. 194, 492 S.W.2d 888. On April 12, 1973, May instituted this suit against Edwards, seeking reinstatement to the office, and alleging that the election of Edwards was void. Edwards answered, pleading that the judgment in the first case was res judicata, that since he was the incumbent duly elected to the office, no vacancy existed, that he was not subject to removal and that there was no authority for the reinstatement of May. The circuit court dismissed May's complaint, holding that from and after June 26, 1972, Edwards was the duly elected and qualified holder of the position, that there was neither evidentiary nor legal basis which would justify his removal and no provision of law for May's reinstatement. We agree with the circuit judge.

The disposition we make of this case renders the question whether appellant invoked the proper remedy or attempted to invoke the common law remedy of quo warranto moot. We shall consider this proceeding, for the purposes of this opinion, as if it were properly brought under Ark.Stat.Ann. §§ 34--2201, 34--2203 and 34--2209 (Repl.1962).

Appellant contends Edwards has no right to the office and the trial court erred in failing to reinstate May. Appellant challenges Edwards' title to the office, arguing there is a grave question as to Edwards' official status, because there was no judicial declaration or affirmative finding by the city council that May was ineligible to serve before the council elected Edwards, and that the council's action was based only upon a declaration by the City Attorney of North Little Rock that a vacancy existed. Appellant overlooks the fact that the judgment in the first case is res judicata of these issues. According to the stipulation of the parties, these very issues were determined by final judgment of the circuit court, and he was precluded from raising them in this proceeding. Walthour v. Finley, 237 Ark. 106, 372 S.W.2d 390; Morrow v. Raper, 222 Ark. 414, 259 S.W.2d 499. That judgment, however, was conclusive only upon the issues presented and facts existing at the time and not upon any particular matter which was not necessarily within the issues presented or which could not have been litigated in the prior proceeding. Arkansas State Highway Commission v. Staples, 239 Ark. 290, 389 S.W.2d 432; Swanson v. Johnson, 212 Ark. 340, 205 S.W.2d 702; Coleman v. Mitchell, 172 Ark. 619, 290 S.W. 64. Insofar as the record discloses, there was no issue in that proceeding as to the tenure of Edwards or the possible reinstatement of May, and it does not appear these matters could have been litigated at that time. Inasmuch as appellee has not shown that these issues were or could have been raised in the earlier proceeding, we cannot say appellant is barred from raising them now. Crow Oil & Gas Co. v. Drain, 171 Ark. 817, 286 S.W. 971. In determining the issues presented here, however, May must rely upon the strength of his own title to the office and not upon the weakness of Edwards'. Langston v. Johnson, (1974) 255 Ark. ---, 504 S.W.2d 349. In this instance, Edwards is the incumbent and will continue in office unless May is entitled to reinstatement.

There seems to be no precedent on the exact circumstances prevailing here. Our constitution provides that no person convicted of an infamous crime shall be capable of holding any office of trust or profit. Article 5, Sec. 9. We have said this language means the fact of conviction disqualifies one from holding public office. Ridgeway v. Catlett, 238 Ark. 323, 379 S.W.2d 277. We need not consider whether, in May's case, the conviction, even though reversed, would forever bar him from holding public office. Although no enabling legislation seems to have ever been passed, there is no occasion for our considering whether the constitutional provision is self-executing. We must accept the premise that, as between these litigants, these matters were concluded by the earlier litigation.

The North Little Rock Council, acting upon the premise that a vacancy existed, proceeded to elect an alderman. Apparently the only applicable statute is Ark.Stat.Ann. § 19--1026 (Repl.1968). That statute provides that whenever a vacancy shall occur, by any reason, in the office of alderman in a city of the first class, the council shall elect an alderman to serve for the unexpired term. We take this statute to govern in this case, which means that Edwards was elected for May's unexpired term and that he will serve for that term, unless unforeseen events should earlier end his tenure. It is agreed there is no basis for his removal from office for cause. The only contention is, in effect, that his tenure ended when May's conviction was reversed.

As conceded by appellee's attorney in oral argument, either result we might reach would have harsh consequences, either to May, the duly elected alderman, who is again presumed to be innocent of the charges against him, or to the people of North Little Rock because of the uncertainty which would result if Edwards could serve only upon condition that May's conviction was not reversed. Not only would there be an undesirable confusion if May should be reinstated, but it would be compounded if, while again serving, he should be found guilty upon retrial before the same term expired.

May takes the position that the reversal of his conviction made that judgment a nullity, and that the matter must be viewed as if there had never been a trial or any other action on the charges against him in that case, and that he is restored to all rights he had before the rendition of that judgment. There is certainly some support for that view in our cases. See Palmer v. Carden, 239 Ark. 336, 389 S.W.2d 428; Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S.W. 393; Heard v. Ewan, 73 Ark, 513, 85 S.W. 240; Clark v. Arkanses Democrat Co., 242 Ark. 133, 413 S.W.2d 629, supplemental opinion, 242 Ark. 497, 413 S.W.2d 633; Morgan Engineering Co. v. Cache R. Drainage Dist., 122 Ark. 491, 184 S.W. 57. It must be remembered, however, that the rights said to be restored are ordinarily those existing between the parties only, unaffected by any overriding public interest.

The only Arkansas cases having any bearing whatever on the reinstatement of a removed public official are Winfrey v. State, 133 Ark. 357, 202 S.W. 23, and Gray v. Independence County, 166 Ark. 502, 266 S.W. 456. Both the readily distinguishable, and there is little comfort to either May or Edwards in them. In Winfrey, the removal was itself a part of the final judgment reversed on appeal. W...