May v. Edwards

• Decision Date: 17 November 1975
• Docket Number: No. 75--165,75--165
• Parties: John O. MAY, Appellant, v. Dell EDWARDS et al., Appellee.
• Court: Arkansas Supreme Court

Page 647

529 S.W.2d 647

258 Ark. 871

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

No. 75--165.

Supreme Court of Arkansas.

Nov. 17, 1975.

Rehearing Denied Dec. 15, 1975.

John O. May, pro se.

Zachary D. Wilson, North Little Rock (no brief filed by appellees), for appellees.

FOGLEMAN, Justice.

This appeal questions the propriety of the judgment of the circuit court sustaining the demurrer of appellees to appellant's complaint alleging that he was entitled to the office of alderman of the second ward of North Little Rock and that appellee Edwards was usurping that office. Appellant May also sought to recover from the City of North Little Rock his legal fees incurred in seeking to establish his right to the office. The court, upon sustaining the demurrer, dismissed the complaint. We affirm as to the City of North Little Rock but reverse as to Dell Edwards.

In arriving at our conclusion, we must, in this usurpation action, as in any other, construe the complaint in favor of the pleader. Neal v. Packer, 200 Ark. 10, 139 S.W.2d 41. See also, Faulkner v. Woodard, 203 Ark. 254, 156 S.W.2d 243. The plaintiff alleged in his complaint, filed in November, 1974, that: he was duly elected second ward alderman for a four-year term ending December 31, 1974; he was convicted of inducing an abortion and sentenced on May 23, 1972, but the conviction was reversed and, upon remand, the charge was dismissed on motion of the state on May 30, 1974; on June 12, 1972, the North Little Rock City Council directed the city attorney to obtain a judicial determination of May's status, but when the Council heard a legal opinion rendered by this attorney, it illegally elected Dell Edwards in the place of May, upon the basis that a vacancy in the office was created by the conviction of May; Dell Edwards is usurping the office and should be removed upon authority of Ark.Stat.Ann. § 34--2201 (Repl.1962); Edwards should be required to pay the compensation he will receive while usurping the office to May pursuant to Ark.Stat.Ann. § 34--2208 (Repl.1962).

These allegations must be taken as true. Faulkner v. Woodard, supra. Although a complaint must state facts constituting a cause of action as something more than mere conclusions, when considered on demurrer, it is sufficient if they are stated according to their legal effect, without stating the evidence of the facts alleged. Driesbach v. Beckham, 178 Ark. 816, 12 S.W.2d 408.

Our statutes have been held to afford a plain, complete, and adequate remedy at law for one entitled to an office but not in possession of it. Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667. One entitled to an office has a right to protect his incumbency or to sue an usurper to recover it. Wood v. Miller, 154 Ark. 318, 242 S.W. 573. See also Jessup v. Hancock, 238 Ark. 866, 385 S.W.2d 24. The action may be maintained against one who is exercising the functions of an office which he cannot hold against his adversary, by reason of a superior right in the latter. Wheat v. Smith, 50 Ark. 266, 7 S.W. 161. For the purpose of such cases, the term usurper is used not merely to denominate one who intrudes himself into an office without color of title, for, as against one having a better right to it, one exercising a public office without an absolute right to it, is regarded as an usurper. Wheat v. Smith, supra. In an usurpation action a defective title is no greater protection than no title at all, and there cannot be a de facto officer when a de jure officer already fills the office. Neal v. Parker, 200 Ark. 10, 139 S.W.2d 41.

Unless we can say that, as a matter of law, a vacancy existed in the office when May was convicted, without regard to the fact that the conviction was not only subsequently reversed, but the charge dismissed, May has stated a cause of action against Edwards. Neal v. Parker, supra. In this connection, it appears that the trial court may have accepted the argument of appellees, advanced in a memorandum brief accompanying their demurrer, that the matter was res judicata. We cannot sustain the court's action on this basis. Res judicata is an affirmative defense, which ordinarily must be raised by answer. Hurst v. Hurst, 255 Ark. 936, 504 S.W.2d 360. It cannot be raised by motion to dismiss. Southern Farmers Assn., Inc. v. Wyatt, 234 Ark. 649, 353 S.W.2d 531. Since it is an affirmative defense, it cannot be raised by demurrer unless the essential facts appear upon the face of the complaint. In this case they do not. No mention is made in the complaint of any previous litigation between the parties, and courts cannot take judicial notice of prior litigation in other cases even between the same parties. Lewis v. Lewis, 255 Ark. 583, 502 S.W.2d 505; Hurst v. Hurst, supra. Furthermore, in order for the doctrine of res judicata to apply, it must appear that the particular matter involved was raised and determined or that it was necessarily within the issue and might have been litigated in the previous action. Hurst v. Hurst, supra; Fisher v. Fisher, 237 Ark. 321, 372 S.W.2d 612; Arkansas State Highway Commission v. Staples, 239 Ark. 290, 389 S.W.2d 432. None of these requisites appears on the face of the complaint.

This case is unlike May v. Edwards, 255 Ark. 1041, 505 S.W.2d 13, where the plea of res judicata was sustained. There the parties stipulated that the same issues had been involved in a previous suit between the same parties, but we held that the issue of Edwards' tenure and May's reinstatement had not been involved in the first case. The only contention made in May v. Edwards, supra, was that Edwards' tenure ended when May's conviction was reversed. Applying res judicata, we held that it was not, based upon the assumption that a vacancy existed, as had been previously determined, but neither judgment has been pleaded in this case.

Thus, in considering May v. Edwards, supra, on this appeal, we can accord it only precedential value, just as if the parties had been Jones on the one hand and Smith on the other. We did not decide whether there was a vacancy, because the plea of res judicata as to that question was sustained. So we are now faced with the question whether a conviction, which was not final, automatically created a vacancy in the office, or, if not, whether the city council had the power to declare it vacant on that account.

Art. 5 § 9 of the Constitution of Arkansas provides that no person convicted of infamous crime shall be capable of holding any office of trust or profit in this state. As pointed out in May v. Edwards, supra, no enabling legislation has ever been passed and it was there unnecessary to decide whether this provision is self-executing. We did, however, recognize that it is the fact of conviction that disqualifies one from holding public office under the authority of Ridgeway v. Catlett, 238 Ark. 323, 379 S.W.2d 277. This disqualification, under Ridgeway, cannot even be removed by pardon. See also, State v. Irby, 190 Ark. 786, 81 S.W.2d 419. We have not held the provision to apply automatically, without enabling legislation, except as a disqualification to taking office after election following both conviction and pardon. See State v. Irby, supra. We did, in May v. Edwards, hold that a reversal of a conviction did not restore the right of the person convicted to the office, assuming that there was a vacancy because of the conviction. In this case, the charge has been dismissed, and the presumption of May's innocence is unimpaired.

The reason one who has been convicted of an infamous crime is prevented from taking office is because he is thereby rendered ineligible just as he would be if he did not possess other qualifications required by law. State v. Irby, supra. It is quite a different matter to consider the effect of ineligibility upon an incumbent. We have said that an office does not ipso facto become vacant when a condition of ineligibility of the incumbent arises after he takes office, if he was eligible when he took office, and the subsequent ineligibility merely affords grounds for removal. Stafford v. Cook, 159 Ark. 438, 252 S.W. 597. We recognized in May v. Edwards, supra, that there were countervailing equities but that conflicting considerations should be resolved in the public interest. This would not require that one absolved of guilt be forever deprived of any benefits of the office to which he was elected by the sovereign people. But May could not be restored to office in this action, because the term to which he had been elected has expired. The only possible result of this suit, insofar as Edwards is concerned, would be recovery of compensation paid for some part of the term to which May was elected. Still, the constitutional section, insofar as an incumbent is concerned, is penal in nature. See Summerour v. Cartrett, 220 Ga. 31, 136 S.E.2d 724 (1964). There is no applicable act providing for suspension or removal of one charged with an infamous crime such as was applied in Gray v. Independence County, 166 Ark. 502, 266 S.W. 465 and Winfrey v. State,...