Rockefeller v. Hogue

• Decision Date: 21 April 1969
• Docket Number: No. 5--4869,5--4869
• Citation: 439 S.W.2d 805,246 Ark. 712
• Parties: Winthrop ROCKEFELLER et al., Appellants, v. Ernest HOGUE et al., Appellees.
• Court: Arkansas Supreme Court

Page 805

439 S.W.2d 805

246 Ark. 712

Winthrop ROCKEFELLER et al., Appellants, v. Ernest HOGUE et al., Appellees.

No. 5--4869.

Supreme Court of Arkansas.

April 21, 1969.

Wright, Lindsey & Jennings, Little Rock, for appellant.

Sam Robinson, Little Rock, for appellee Hogue.

Howell, Price & Worsham, Little Rock, for appellee Hailey.

BYRD, Justice.

Appellant Winthrop Rockefeller is the Governor of the State of Arkansas. Acting as such Governor and for the purpose of removing appellees Ernest Hogue and Newt L. Hailey, members of the Arkansas Game and Fish Commission, he appointed appellants Courtney Crouch and Heartsill Ragon as members of a 'hearing panel' to prepare, in accordance with judicial standards, a proper record of the charges against each Commissioner. The hearing panel is directed to hear the evidence presented both for and against removal of the Commissioners and, after the evidence had been properly prepared, to present it to the Governor for his decision. Pursuant to the Governor's plan for the preparation of the record, H. W. McMillan was appointed 'evidence officer' to investigate the charges against the Commissioners and to present such evidence as he considers pertinent to the hearing panel.

The Chancery Court enjoined appellants Crouch and Ragon from holding a hearing on the Governor's charges against the Commissioners upon the basis that the referral to the panel was an unlawful delegation of authority, and also enjoined the Governor from considering as admitted matters contained in a request for admissions (the request being submitted in accordance with the discovery procedure provided for circuit, chancery and probate courts by Act 355 of 1953). For reversal appellants contend, among other things, that the Chancery Court erred in taking jurisdiction because the Commissioners have an adequate remedy at law. Appellans' argument is as follows:

'In the case at bar, two basic questions arise: (1) Is there a remedy available at law? (2) Is such remedy adequate to give appellees complete and prompt redress for any grievances they conceive they have because of the actions of appellants?

'The answer to the first of these question is unquestionably in the affirmative.

Section 5 of Amendment 35 grants to the Governor the power of removing appellees after a hearing and also provides that such hearing 'may be reviewed by the Chancery Court for the first district with right of appeal therefrom to the Supreme Court, such review and appeal to be without presumption in favor of any finding by the Governor or the trial court.' Thus the people of Arkansas have given to appellees a clear remedy as a matter of right to redress any alleged wrongs which they might receive at the hands of the Governor because of removal proceedings. There are no provisos or special qualifications into which appellees must fit their alleged grievances in order to obtain this right of appeal. Therefore, if appellees feel that they have been wronged or that their rights have been denied or infringed, they have a right to appeal to the Pulaski Chancery Court and to this Court.

'The answer to the question whether the remedy available to appellees is complete is also in the affirmative. In order to preclude the maintenance of a suit in equity the remedy at law must be plain, adequate, complete, and as efficient as the remedy in equity. First State Bank v. Chicago R.I. & P.R.R. Co. (8 Cir.), 63 F.2d 585 (90 A.L.R. 544), McGehee v. Midsouth Gas Company, 235 Ark. 50, 357 S.W.2d 282. Certainly the remedy provided for appellees by the people of Arkansas in this case meets all of these standards. By appealing the decision of the Governor to the courts in question, appellees can raise not only the alleged wrongdoings which they have raised in this suit but also any which might occur in the future as the removal proceedings continue. Also, by using the method provided for in the Constitution the appellees can have the matter decided once and for all without resorting to piecemeal litigation.

'In this case there would be no irreparable injury if appellees lose this appeal. Just for the sake of discussion, let us assume that the injunction is dissolved by this Court and that the Governor wrongfully removes appellees from office. The only thing which they stand to lose is privilege to serve as Commissioners on the Game & Fish Commission. No question of salary or other remuneration is here involved. Under the law it would not be necessary for the appellees to even miss a single day in office if they had been wrongfully removed. In Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85 (1968), this Court held that the removal would not be complete and the office would not be vacant until the appellate proceedings had been completed.

'The people of Arkansas have provided appellees with a complete, adequate and efficient remedy to redress not only the alleged wrongs set forth in their complaints but also any grievances which they may conceive in the future. Since there are no special circumstances requiring the extraordinary remedy of injunction, the lower Court erred in allowing the appellees to substitute their request for an injunction for the appeal provided for in the Constitution.'

Since our decisions, Cummins v. Bentley, 5 Ark. 9 (1842), Bassett v. Mutual Benefit Health & Accident Ass'n, 178 Ark. 906, 12 S.W.2d 893 (1929), recognize that equity has no jurisdiction where there is a complete and adequate remedy at law, we must then determine whether the Commissioners have a complete and adequate remedy at law.

The Commissioners sought to be removed were appointed under Amendment 35 to the Constitution of Arkansas. The amendment was initiated by the people and enacted at the general election. In adopting Amendment 35, the people of Arkansas made provision for an independent commission to regulate hunting and fishing in the State and to advance conservation of all forms of wildlife. This was something new in our constitutional fabric. By their action the people created the commission, set its membership, prescribed the qualifications for appointment, and generally outlined the powers of the commission. Section 2 of Amendment 35 conferred upon the Governor the power to appoint the commissioners. Because of the State's history of two term Governors, a 'built in' safeguard was established, staggering the commissioners' terms of office, in the effort to prevent any Governor from gaining control of the commission. Thus, with seven year staggered terms, it was doubtlessly assumed that no Governor would be able to appoint a majority of the commissioners. Although recent history has shown that this assumption was erroneous in that one Governor served twelve consecutive years there can be no doubt of the intentions. Section 5 of the Amendment provides:

'A Commissioner may be removed by the Governor only for the same causes as apply to other Constitutional Officers, after a hearing which may be reviewed by the Chancery Court for the First District with right of appeal therefrom to the Supreme Court, such review and appeal to be without presumption in favor of any finding by the Governor of the trial court.' (Emphasis ours).

In Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85 (1968), we held that the removal phrase 'for the same causes as apply to other constitutional officers,' referred to the 'high crimes and misdemeanors and gross misconduct in office,' set out in Art. 15, § 1 of the Constitution as grounds for impeachment of officers in general.

The United States Supreme Court, In Matter of Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), pointed out that proceedings such as this are adversary proceedings of a quasi-criminal nature and that one so charged is accordingly entitled to 'procedural due process'. We understand this 'procedural due process' to mean that one so charged is entitled to a hearing before a tribunal established by law and governed by rules of law previously established, 16 Am.Jur.2d, Constitutional Law § 580, where he will be entitled to the compulsory attendance of witnesses or a substitute therefor such as the taking of depositions. Anything less would discourage men of character from accepting such positions, for otherwise their leadership and character could be destroyed by an adjudication that they were guilty of 'high crimes and misdemeanors and gross misconduct in office' because of a mere failure of proof.

That a person charged in an impeachment proceeding is entitled to procedural due process is not a new requirement nor one of recent origin. It received much thought at the time of the impeachment of Sir Francis Bacon. When we analyze Section 5 above, to determine the point or place where the procedural due process is guaranteed a commissioner in a removal proceeding, we also find the answer to the question here involved--i.e. does the commissioner have a complete and adequate remedy at law to correct any alleged errors committed by the Governor in discharging his duties?

Under the scheme of government set out in our constitution of 1874, the government of the State was divided into three branches, the executive, the legislative and the judicial. Under Article 7, § 1, the judicial power was vested:

'* * * in one Supreme Court, in circuit courts, in county and probate courts, and in justices of the peace. The General Assembly may also vest such jurisdiction as may be deemed necessary in municipal corporation courts, courts of common pleas, where established, and, when deemed expedient, may establish separate courts of chancery.'

Article 7, § 4 gave the Supreme Court appellate jurisdiction only, unless otherwise specifically provided. Circuit courts were generally given jurisdiction in all civil and criminal cases and superintending control and appellate jurisdiction over inferior courts, Art. 7, § 11 and Art. 7, § 14. The chancery court, as distinguished from the circuit court, has at all...