Porter v. Hesselbein

Ed F. McFaddin, Associate Justice (Dissenting). I respectfully dissent from the reversal. The learned Trial Judge delivered a written opinion which is in the transcript, and to which I subscribe. I therefore use as my dissent the applicable portion of .¿the written opinion of the Honorable Paul X. Williams, who was the Trial Judge in the case. It is as follows:

“CL- L. Hesselbein, Fred Porter, and Homer Gray were candidates for the Democratic nomination for the office of Alderman of the Third Ward of Morrilton, Arkansas, in the preferential primary election held by the Democratic party on July 25, 1961. Each of the individuals was and is a member of the Democratic Party, was a qualified candidate for the nomination sought and voluntarily sought the nomination of the Party.

‘ ‘ Since there were more than two candidates for the nomination it was necessary that they submit themselves to the preferential primary.

“Asa result of the said preferential primary held on July 25th Hesselbein was certified to have been the reciplent of 327 votes, Porter 178 votes, and Gray 1Ó0 votes, and since 327 was more than a majority of all votes, the Democratic Party Officials, by virtue of the provisions of Act 238 of 1943 (The Preferential Primary Law) certified Hesselbein to be the Democratic nominee.

“Neither of the losing candidates applied for a recount or for an order to place either of their names on the Democratic ballot in the general primary election which was held on August 8th.

“On August 14, 1961, Porter- filed in the Conway Circuit Court an instrument designated ‘complaint’ in which he named himself as plaintiff and C. L. Hesselbein as defendant. The prayer of that instrument is as follows :

“ ‘Wherefore, plaintiff prays that he be adjudged and declared one of the duly elected nominees of the Democratic Party for the run-off or elimination primary for Alderman of the 3d ward of the city of Morrilton, Arkansas and that the court enter an order herein directing the county Democratic Central Committee to certify him as such nominee; for his costs herein, and for all other proper and legal relief to which he may be entitled. ’

“At the time the complaint was filed the Primary election had already been held on August 8th and there was no other primary election to which Porter could have been certified as a candidate.

“Subsequently, the General Election has been held and Hesselbein, the Democratic nominee, was elected to the position and office of Alderman. Hesselbein is now holding that office. Any delay in presenting plaintiff’s complaint has not been the fault of Hesselbein and there has been no fraud . . . Hesselbein now files a Motion to Dismiss, which is the matter under consideration.

“The Preferential Primary Law under which the July 25th preferential primary election was held is Act 238 of 1943. In the discussion concerning this ‘motion to dismiss’ it will be borne in mind that when Arkansas adopted the Primary Election Law in 1916 it did not completely divest the political parties of all supervision and control of the manner in which the party would select its nominees for elective positions; and that prior to the 1916 law, the party procedure both for elections and election contests were matters in which the party itself was all powerful. Walls v. Brundidge, 109 Ark. 250 . The contest provisions of the statute were construed by the Arkansas Supreme Court not to extend to contests for delegates and committeemen. Tuck v. Gotten, 175 Ark. 409 . The law has been amended to include those specific offices, but that holding of the court is here referred to in order to emphasize that the primary election law did not usurp the functions of the political party unless the function was specifically dealt with. In Williamson v. Montgomery, 185 Ark. 1129 , the Court said :

“ ‘Where a political party makes a rule governing its procedure and in good faith interprets that rule, the court has no authority to substitute its interpretation for that of the officers of the party.’. ,,

It goes without argument that the nomination of a candidate is actually a Political Party Function.

“In the case at bar, the plaintiff, Mr. Porter, docs not claim to be the nominee of the party. He does not claim the right to the office itself. His prayer is that he be declared ‘one of the nominees of the Democratic Party for the Bun-Off Primary.’ The true situation can be better stated when it is said that Mr. Porter, at a time when it is impossible to do so, asks this court to declare him eligible to participate in a primary election that can never be held. Not only has the time for the general primary passed, but the general election has been held and the office itself has been filled. . . . Mr. Porter has not been a candidate in such a primary and he does not allege or claim that he is honestly the democratic nominee. He merely alleges that he should have been permitted to appear on the ballot in the general primary election. Ho did not formally make this contention until the filing of the complaint in this cause and that was after the general primary had been held. Furthermore, he took no steps to have the Democratic Party officials put his name on the ballot. The usual election procedure had been followed and the party, in its usual way, had awarded the nomination to the one who had the majority of the votes.

“In the case of Higgins v. Barnhill (1951), 218 Ark. 466 , where a candidate thought his name should go on the general primary ballot after having lost in the preferential primary, an application was made to the chancery court for a writ of mandamus. The application was refused and an appeal followed. The Arkansas Court, at page 467, said:

“ ‘. . . As to the jurisdiction of the chancery court, Ark. Stats. 33-101 provides: “The Circuit and Chancery Courts shall have power to hear and determine petitions for the writ of mandamus and prohibition and to issue such writs to all inferior courts, tribunals and officers in their respective jurisdictions.”

“ ‘If appellant was entitled to have his name placed on the ballot, and the chairman and Secretary of the county democratic central committee refused to have his name printed thereon, then the chairman and secretary would be refusing to perform a ministerial duty and could be compelled by mandamus from the chancery court to carry out such duty . . . The question presented here is not moot because, if we fail to pass on the issue for the reason that at this late date the decisions of this court could avail the appellant nothing, it is possible that, by reason of the time element involved between the two primary elections and the time necessary to perfect an appeal to this court, the point involved could never be decided before becoming moot . . .’

‘ ‘ The Court finds that the laws of Arkansas regarding ‘ Contest ’ of a primary election are the only statutory enactments depriving the political party of the right to administer its own selection of nominees that can possibly be available to Mr. Porter as a basis to maintain the suit he has filed. And that brings us squarely to the question: ‘Is this action a contest for a party nomination?’ The evident answer is that it is not. At most, this is a belated attempt to assert that Porter should have been permitted to be a candidate in tbe general primary election which has already been held. Mr. Porter does not attempt to say that he honestly won the democratic nomination. In the case of Bohlinger v. Christian (1934), 189 Ark. 839 , the court used the following language:

“ ‘At the threshold of the case, however, appellant is met with the proposition that, before he' can- contest appellee’s nomination, he must allege and'show that he, himself, was entitled to that nomination . . .’

and at page 841 of the same case:

“ ‘. . . In Storey v. Looney, 165 Ark. 455 , this court said: ‘ ‘ The question necessarily presents itself in the be^ ginning whether or not appellant is in an attitude to contest the certificate of nomination awarded to appellee ... In order to make a contest for nomination, appellant must show that he is entitled to the nomination, himself,, which he fails to do ...” ’

‘ ‘ The. object of the election laws is to permit a political party to nominate its candidate in an orderly way so. that the party nominee may hold the office if he is elected in the general election. The enactment of the primary law did not completely usurp all the functions of the political party. The candidates in democratic primary elections are voluntarily seeking the party endorsement and nomination. They submit themselves to the machinery of the party in every way that has not been taken over by a specific statutory enactment. It is reasonable to suppose that the Legislature considered the party and the existing court procedure sufficient to take care of the problems that arise in the preferential primary. At least, we can safely say that the Legislature, with full knowledge of the possibility of just such a situation as the case at bar, saw fit to NOT provide statutory direction to insure that a disgruntled losing candidate could contest a preferential primary election when he does not claim to have honestly won the primary nomination.

“The object of the preferential primary.election is not to select ‘Nominees’ to be candidates in the general primary election. Its object is to insure that the candidate getting the nomination has received a majority of the votes cast rather than a plurality. Where there are three candidates, as in the case at bar, the political party is interested in selecting from the three the one who gets the majority of the votes. The preferential law was and is designed to get away from the old system by which a nomination could be won by a mere plurality.

“CONCLUSION. Since Mr. Porter does not allege that he was and is entitled to the political party nomination; since there is no allegation of the loss of a property right; since there is no practical remedy at this date; and since this is not a contest of a Democratic Party Nomination, the Complaint of the plaintiff. should be and is dismissed at cost of the plaintiff.

“Paul X. Williams.”