Ellis v. Rockefeller

Lyle Brown, Justice (concurring). I agree with the majority’s conclusion; however, that opinion fails to mention a particular point of importance. The fact that the State Board is not required to select the third member from the loyalists of the majority party may initially arouse concern. The answer to that anxiety is that if the State Board abuses its discretion, or if a given appointee fails in his responsibility to act on behalf of the majority party, the courts are empowered to afford relief.

Carleton Harris, Chief Justice. I agree with the majority that appellants pursued the wrong remedy, and that mandamus would not lie in this case; however, the court has passed on the contentions, which I consider entirely appropriate, due to the time element involved.

I also agree with the majority that these appellants are not entitled to any relief, and that the State Board of Election Commissioners is not required to “rubber stamp” the names offered by the majority party. In other words, it is my view that the board is entitled to exercise its discretion in making the appointments — bnt I am also of the opinion that this discretion is limited.

It is true that the omission of the word, “the,” and changing of the word, “member,” to “members,” in the 1963 amendment of Section 3 of Initiated Act No. 3 leave the statute somewhat confusing, and make an interpretation more difficult, but I am unable to reach the final conclusion found by the majority.

The word, “representative,” is defined, inter alia, by Webster’s Dictionary (Third New International) as “one that represents another or others in a special capacity; one that represents another as agent, deputy, substitute, or delegate, usually being invested with the authority of the principal.” This is the sense in which the word is used in everyday language; it is simply contemplated that one who represents another is in accord and harmony with the one that he represents.

I cannot believe that it was the intention of the Legislature to permit the majority party to be represented by one whose beliefs and interests are contrary to the group represented, so, while I do not think that the board is required to appoint particular persons (appellants herein) as the third members of the several County Boards of Election Commissioners, I do think that the board is required to name persons who are supporters of the majority party.

I therefore respectfully dissent to this portion of the opinion.

Paul Ward, Justice. I disagree with the majority, both (a) as to the interpretation of the statutes involved, and (b) as to the propriety of the remedy of mandamus.

(a) Briefly, my interpretation of the statutes is that the legislature clearly intended for the majority party, in general elections, to have a majority of the election officials at the ballot box. Any other interpretation would make the statutes meaningless. Certainly my interpretation has been zealously followed over the years up to the present time - - until the shoe got on the other foot.

(b) I agree with the majority that this court cannot control the discretion of a trial court. This means that when a trial court has a choice between two courses of action we cannot tell it which course to follow.

In the case here under consideration the State Board of Election Commissioners was directed by statute to appoint a “third member” of each County Board. If the party in power had nominated more than one person as the “third member” then the State Board would have had a right to exercise its discretion and choose any one of the nominees. That, however, is not the situation here since only one nominee was named. Therefore the State Board had only one “choice” with no discretion and mandamus is a proper remedy.