Miller v. Tatum

• Decision Date: 18 January 1926
• Docket Number: 100
• Citation: 279 S.W. 1002,170 Ark. 152
• Parties: MILLER v. TATUM
• Court: Arkansas Supreme Court

279 S.W. 1002

170 Ark. 152

MILLER v. TATUM

No. 100

Supreme Court of Arkansas

January 18, 1926

Prohibition to Sebastian Circuit Court, Fort Smith District John E. Tatum, Judge; reversed.

Judgment reversed, and complaint dismissed.

W. L Curtis and Webb Covington, for appellant.

Joseph R. Brown, G. L. Grant and James B. McDonough, for appellee.

MCCULLOCH C. J. WOOD and HUMPHREYS, JJ., dissent.

OPINION

MCCULLOCH, C. J.

Fort Smith is a city of the first class and has adopted what is known as the commission form of government, authorized by a statute enacted by the General Assembly of 1913. Acts 1913, p. 48. The statute provides for three commissioners, composed of the mayor and two other commissioners elected by the people. M. J. Miller and Thomas H. Ward are the two commissioners elected as such, and J. H. Parker is mayor. The statute provides for the recall of any of the elective officers of the city, an election for that purpose being required to be held on the petition of electors, "at least thirty-five per centum of the entire vote cast for all candidates for that office at the last preceding general municipal election." Section 17 of the statute regulating the recall reads, in part, as follows:

"The signatures to the petition need not all be appended to one paper, but each signer shall add to his signature his place of residence, giving street and number, if any. One of the signers of each of such papers shall make oath before an officer competent to administer oaths that the statements therein made are true as he believes, and that each signature to the paper appended is a genuine signature of the person whose name it purports to be. Within ten days of the date of filing such petition, the city clerk shall ascertain and determine whether or not said petition is signed by the requisite number of qualified electors, and, if necessary, the board shall allow said city clerk extra help for that purpose; and he shall attach to said petition his certificate showing the result of said examination. * * * If the petition shall be deemed sufficient, the clerk shall submit the same to the board without delay. If the board shall find the petition thus submitted to it contains the requisite number of electors signed thereto, and is otherwise found to be sufficient, it shall order and fix a date for holding said election not less than thirty days nor more than forty days from the date of the clerk's certificate to the board that a sufficient petition is filed. * * *"

Section 29 of the statute reads as follows:

"Petitions provided for in this act shall be signed by none but legal voters of the city. Each petition shall contain, in addition to the names of the petitioners, the street and house number in which the petitioner resides, his age and length of residence in the city. It shall also be accompanied by the affidavit of one or more legal voters of the city, stating that signers thereof were, at the time of signing, legal voters of said city, and the number of signatures at the time the affidavit was made."

Petitions for the recall of Commissioners Miller and Ward were circulated, and the same were filed with the city clerk in accordance with the provisions of the statute quoted above, and the clerk, upon examination, determined that the petitions were signed by the requisite number of qualified electors and were sufficient in all respects, and he submitted the same to the board of commissioners for their action. Before the commission acted upon the petitions, a suit was filed in the chancery court by O. E. Jackson and Thomas J. Williams, citizens of Fort Smith, against the commissioners to restrain them from calling an election. The pleadings in that case are not properly before us, but it sufficiently appears that the chancery court, or the chancellor in vacation, granted a temporary injunction in accordance with the prayer of the complaint restraining the commissioners from ordering the recall. Thereupon, the commissioners met in session and voted unanimously that the petitions were insufficient and that the election be not called. Mayor Parker cast his vote to that effect under protest. It is shown that the members of the board of commissioners were advised by the city attorney that they would be in contempt of the chancery court unless they voted against calling the election. A few days later the action instituted by Jackson and Williams in the chancery court was dismissed, and immediately thereafter at a meeting of the board of commissioners Mayor Parker introduced a resolution to call an election pursuant to the petitions, but the other two commissioners voted to indefinitely postpone the resolution, and thus the matter ended there. An action was then instituted in the circuit court by J. D. Southard and four other citizens and taxpayers of Fort Smith against the mayor and the other two commissioners to compel them, by mandamus, to call an election pursuant to the petitions. It was alleged in the complaint that the petitions were sufficient, but that Commissioners Miller and Ward had entered into a conspiracy with certain others to defeat the petitions, that they had instigated the chancery suit brought by Jackson and Williams and had been guilty of other fraudulent practices which afforded just grounds for their recall, and that the chancery court was without jurisdiction to restrain the commissioners in taking action upon the petitions. There was an allegation in the complaint that "the said M. J. Miller and Thomas H. Ward have done and are now doing everything in their power to prevent a recall election being had." The prayer of the complaint was that "the said J. H. Parker, mayor; M. J. Miller, commissioner No. 1, and Thomas H. Ward, commissioner No. 2, composing the board of commissioners of the city of Fort Smith, be required to hold said petitions sufficient and to call an election as required by law, to the end that a vote on the recall of said commissioners may be had." Summons was served on each of the commissioners, and the cause was heard by the circuit judge at chambers during vacation of the court, and findings of fact and declarations of law were announced and spread at large upon the records by the trial judge in his judgment. The judgment rendered was that "the city commissioners, M. J. Miller and Thomas H. Ward, are ordered and directed and commanded to call the recall election in compliance with the petition, and the order of the circuit judge, to be held on the 12th day of January, 1926. The said commissioners are ordered, directed and commanded to issue the call for said election on or before the 12th day of December, 1925. In voting for the recall election, Mayor J. H. Parker and Commissioner M. J. Miller are ordered to vote for the recall of Thomas H. Ward, and J. H. Parker and Commissioner Thomas H. Ward are ordered and directed to vote for the recall of M. J. Miller."

Miller and Ward presented their joint petition to this court for a writ of certiorari to bring up the record and quash the judgment rendered below on the ground that it is void on its face. This court ordered the issuance of the writ and made an order staying the proceedings below during the pendency of the cause here. The record of the proceedings before the circuit judge has been brought up under the writ, and the cause has been regularly submitted.

The first contention of counsel for petitioners, Miller and Ward is that the judgment rendered below is void for the reason that the circuit judge has no power to render a final judgment granting a mandamus in vacation. It is, on the other hand, contended by counsel for appellees that the proceedings were had and the judgment rendered, not by the trial judge acting as such, but by the circuit court, which is authorized by statute to hear such proceedings in vacation. A recent statute (Acts 1925, p. 375) amends § 7020, Crawford & Moses' Digest, so as to read as follows: "The circuit court, and the judges thereof, in vacation, shall have power to issue writs of mandamus to the courts of probate, county courts, justices of the peace and all other inferior officers in their respective circuits." It must be confessed that a literal reading of the statute carries the meaning of an attempt to confer jurisdiction upon circuit judges, as such, to hear and determine a cause and to issue the writ of mandamus in vacation, and, if that be the construction placed upon the statute, it is void for the reason that a mandamus, unless issued merely in aid of the court's exercise of acquired jurisdiction, is a final determination of the rights of the parties--is a judicial award--and must emanate from a court and not merely from the judge. The Constitution vests in the circuit courts, not in the judges thereof, superintending control over inferior courts, and the judges are only authorized in vacation to issue writs in aid of that jurisdiction. Constitution, § 14, art. 7; Reese v. Steel, 73 Ark. 66, 83 S.W. 335. It is our duty, however, to so interpret the language as to give it some effect and carry out the legislative will without thwarting it, if the language is reasonably susceptible of such interpretation. We have concluded, therefore, that under a fair and proper interpretation of the language it was meant to authorize the circuit judge to hold court during vacation, and that the authority to hear and determine the proceedings and to award the writ of mandamus is conferred, not upon the judge, but upon the court. It is undoubtedly within the power of the Legislature to prescribe the time and place for holding courts, and it is not beyond its power to authorize the court to be in session at all times for certain purposes. We have had frequent instances of that kind of legislation in...