State v. Jones

• Decision Date: 05 July 1937
• Docket Number: No. 4-4768.,4-4768.
• Citation: 108 S.W.2d 901
• Parties: STATE ex rel. ROBINSON, Pros. Atty., v. JONES.
• Court: Arkansas Supreme Court

108 S.W.2d 901

STATE ex rel. ROBINSON, Pros. Atty., v. JONES.

No. 4-4768.

Supreme Court of Arkansas.

July 5, 1937.

Rehearing Denied October 25, 1937.

Appeal from Circuit Court, Yell County, Dardanelle District; A. B. Priddy, Judge.

Action by the State, on the relation of Lewis M. Robinson, Prosecuting Attorney, against Garrett Jones, wherein W. H. McClure joined as party plaintiff. From a judgment sustaining a demurrer to the complaint, the plaintiff appeals.

Reversed and remanded, with directions.

Lewis M. Robinson and Scott & Goodier, all of Dardanelle, and Neill Bohlinger, of Little Rock, for appellant.

R. M. Priddy and Hays & Wait, all of Russellville, for appellee.

BUTLER, Justice.

This action was begun by the filing of a complaint in the circuit court of Yell county signed by the prosecuting attorney and brought in the name of the State. W. H. McClure joined as a party plaintiff on the ground that he was a qualified elector of Dardanelle Special School District and had a special interest in the cause of action set out in the complaint, the material allegations of which are summarized as follows: The defendant, Garrett Jones (appellee here), at the time of the school election held in the district on March 20, 1937, was a director of said district. The election was for the purpose of electing two directors, one for a period of five years and another for a term of one year. Appellee was a candidate to succeed himself in the office of director and acted as a judge at said election, together with two other members of the board. Appellee and the other election officers conducted the election and certified the returns to the county judge of Yell county, as follows: "For school director — Garrett Jones 306 votes, W. H. McClure 300, Dr. E. J. Haster 289, Herman Green 287 * * *." Thereupon the appellee was certified as the school director for the five-year term and W. H. McClure for the one-year term.

The complaint recited certain constitutional and statutory provisions and alleged that under the same appellee was ineligible to hold the office of school director, and McClure alleged that he having received the greatest number of votes cast for any eligible candidate, is entitled to the office of school director for the five-year term. The prayer was that appellee be declared ineligible to hold the office of school director and that his present enjoyment of said office be declared to be a usurpation thereof and that he be ousted therefrom. The plaintiff, McClure, prayed in addition that he be declared to be the director for the five-year term. Appellee demurred to the complaint, first, because it did not state facts sufficient to entitle plaintiff to the relief sought, and, second, that the complaint discloses a want of proper parties defendant. The court sustained the demurrer and dismissed the complaint. This appeal followed.

The questions involved in this appeal are: First, is McClure entitled to the relief prayed; second, is the prosecuting attorney authorized to bring the suit; and, third, is appellee a usurper within the meaning of our Constitution and statutory laws? We think McClure's interest and his right to the relief prayed is controlled by the former decisions of this court to the effect that votes cast for an ineligible candidate will not entitle him who receives the next highest number of votes to the office sought. Bohlinger v. Christian, 189 Ark. 839, 75 S.W.(2d) 230, following the doctrine announced in the early case of Swepston v. Barton, 39 Ark. 549, and reaffirmed in Storey v. Looney, 165 Ark. 455, 265 S.W. 51, and Collins v. McClendon, 177 Ark. 44, 5 S.W.(2d) 734. As McClure did not receive the highest number of votes cast, he is not entitled to the relief for which he prayed.

It is contended that the prosecuting attorney had no authority to bring the action on the ground that the statute only authorized the institution of actions against persons who shall usurp county offices and that the office of school director is not a county office. We are of the opinion that, independent of this statute, the prosecuting attorney as the representative of the State is authorized to maintain actions in the nature of proceedings quo warranto to oust any and all persons from offices to which they are not eligible, or the right to hold which they may have forfeited. The substance of the remedy provided by the statutes, sections 10326, 10327 and 10329 of Crawford & Moses' Dig. remains the same as that at common law, and, since those statutes do not profess to declare the sole and exclusive remedy, the general rule is that the statutory remedy will be considered cumulative rather than exclusive of the remedies then existing. 51 C.J., chapter Quo Warranto, § 18, subhead, Statutory Remedy, p. 323. The fact that the statutory proceeding is in lieu of the ancient common-law writ does not abolish the...