State, ex rel. Evans v. Wheatley

• Decision Date: 20 February 1939
• Docket Number: 4-5471
• Citation: 125 S.W.2d 101,197 Ark. 997
• Parties: STATE, EX REL., EVANS v. WHEATLEY
• Court: Arkansas Supreme Court

125 S.W.2d 101

197 Ark. 997

STATE, EX REL., EVANS v. WHEATLEY

4-5471

Supreme Court of Arkansas

February 20, 1939

Appeal from Pulaski Circuit Court, Third Division; J. S. Utley Judge; affirmed.

Judgment affirmed.

Price Shofner, for appellant.

Jack Holt, Attorney General and Owens, Ehrman & McHaney, for appellee.

OPINION

HOLT, J.

In this case appellant sought unsuccessfully in the Pulaski circuit court, third division, to have Walter Wheatley, one of the appellees herein, ousted from the office of state senator and was also unsuccessful in his effort to secure an injunction against the state auditor and the state treasurer restraining them from paying Wheatley any compensation as state senator. Hence this appeal.

Appellant set up in his complaint that he is a citizen and taxpayer of Garland county, Arkansas, and that suit was brought on behalf of himself and all other taxpayers of the state; that appellee, Walter Wheatley, was elected to the office of state senator for the fourteenth senatorial district at the general election in November, 1938; that he had been sworn in as a member of the state senate, and unless ousted from that office, that he would exercise the powers and perform the duties of that office in the session of the General Assembly then just convened and now in session; that unless restrained or prohibited, the state auditor would issue warrants to said Wheatley, and the state treasurer would cash them in payment for his services as state senator. That Wheatley was ineligible to serve as state senator, because he had been convicted of a felony by the Garland circuit court, and had been sentenced to serve one year in the state penitentiary as a result of said conviction. He further alleged that conviction of a felony is an infamous crime under the laws and Constitution of this state. The complaint prayed that the state auditor and state treasurer be restrained from issuing and cashing any warrants to Wheatley for services, and that the court enter a judgment of ouster of Wheatley from said office and for other proper relief. The complaint was duly sworn to. After demurrers filed by appellees had been overruled, they each answered denying each and every material allegation of the complaint and asked that it be dismissed.

The cause was submitted to the trial court on appellant's complaint, defendants' demurrer and their motion to transfer to equity, defendants' answer and an agreed statement of facts, which is as follows: "That the defendant, Walter Wheatley, prior to January 1, 1916, was lawfully engaged in the retail liquor business; that the General Assembly of the state of Arkansas for 1915 enacted what is commonly referred to as the "bone dry" law, making it illegal on and after January 1, 1916, to barter, sell, procure, or give away spirituous liquor in the state of Arkansas. That shortly after January 1, 1916, and during said year, the said Walter Wheatley, without profit to himself, but purely as an accommodation to another person, procured one pint of gin, and was subsequently convicted for a violation of the above-mentioned "bone dry" law and sentenced to serve one year in the penitentiary; that prior to the time for appeal from said conviction had elapsed the then governor of the state of Arkansas issued a full and complete pardon to the said Walter Wheatley; that the said Walter Wheatley did not serve any part of the sentence imposed upon him by the court. That M. O. Evans appeared before the Arkansas state senate in 1937, and contested the right of Walter Wheatley to hold the office of state senator. That the senate affirmed the right of Walter Wheatley to hold the seat to which he had been elected, and said body seated the said Walter Wheatley, and he served during the General Assembly of 1937 and the special session of 1938. That Walter Wheatley was the candidate of the democratic party in the general election of 1938, running for the office of senator from the fourteenth senatorial district. That he was opposed in said election by two other candidates, one of whom was the plaintiff in this action, M. O. Evans. That in said election Walter Wheatley was elected to the office of state senator, and that M. O. Evans ran third in said election. That the senate has accepted the qualifications of the said Walter Wheatley, and he has been sworn in as a member of that body, and is now serving and acting as state senator from the fourteenth senatorial district."

The trial court found that the crime of which Wheatley was convicted was not and is not an infamous crime, that he is eligible to serve as state senator, and that the senate already having passed upon his qualifications and having accepted him, and he having been sworn in as a state senator, the court was without jurisdiction to grant the relief prayed and dismissed the complaint.

The appellant insists here that the trial court had jurisdiction to hear and determine this cause; that the action of the senate in seating Wheatley as a member of that body did not deprive the courts of jurisdiction to pass on his eligibility to serve as a senator, and that the constitutional provision that each house of the General Assembly shall be the sole judge of the elections and qualifications of its members, did not...