Sikes v. General Publishing Co.

Darrell Hickman, Justice, dissenting. I dissent from the result reached by the majority because I feel that mandamus is not the proper remedy under these facts.

It is well-settled law that mandamus will not lie where there is an adequate remedy at law. It is essential that before the writ can be issued, the petitioner must show a clear and certain legal right to the relief sought and have no other adequate remedy at law. Girley v. Wood, Judge, 258 Ark. 408 , 525 S.W. 2d 454 (1975). The purpose of the writ is not to establish a legal right, but to enforce a legal right that already exists. Naylor v. Goza, Judge, 232 Ark. 515 , 338 S.W. 2d 923 (1960). Perhaps most important to this case is the rule that mandamus will not lie when an issue of fact is present. Mothershead v. Ponder, Chancellor, 220 Ark. 816 , 250 S.W. 2d 121 (1952).

These principles have been lost to the fact that this appeal is the consolidation of two separate circuit court actions. The appropriate action for General Publishing Company would have been to challenge the action of the State Printing Board, as was done in the Ouachita Circuit Court, rather than seek the mandamus against Sikes. Intervention in that action would have overcome the necessity of seeking the mandamus in the Pulaski Circuit Court, and even if the ruling was adverse, the appeal to this court would be preserved as shown by a portion of the majority opinion.

As noted, the purpose of this extraordinary writ is not to establish a legal right, which in effect has been done here, but to enforce a right that has already been established. Further, there must be no factual dispute as to whether that right had been established. In this case, the very existence of the Ouachita Circuit action was evidence that no legal right had been established; also, the factual dispute present in that action, i.e., whether the actual bond had to be posted, or whether notification that the bond was forthcoming was sufficient, certainly was an issue in the Pulaski Circuit action. It is difficult to understand why the fact that these two cases were consolidated on appeal should serve as the means for ignoring what we have established as precedent for the review of mandamus cases.

I am also not convinced that the mandamus was issued against the proper person. Robert Sikes was the State Printing Administrator, and if there was no dispute he could have simply made the contract to General Publishing Company a ministerial act. However, at the time the Pulaski Circuit action was filed, Sikes was effectively controlled by a stay order issued in the Ouachita Court. Although he was not made an actual party to the Ouachita action until after the mandamus was filed, he was nevertheless controlled by the stay order. His act of discretion, then, was really a matter of whether to act in contempt of a court order.

Sikes had received three orders from the State Printing Board. He was first told to issue the contracts to Hurley Publishing Company. He was then told by Jim Wooten, the chairman of the State Printing Board, to go ahead and issue the contracts despite the fact the actual commercial bond had not been posted during the requisite period of time. Finally, he was told by the State Printing Board to issue the contract to General Publishing Company. After all of this, he was told by Wooten not to issue the contract to anyone because of a court order. Only after the issue of compliance had been decided would mandamus be proper to force Sikes to mail the contracts to General Publishing Company. I do not disagree with the ultimate result reached by the court. Hurley did not literally comply with the rules and I would reverse the Ouachita Circuit Court on the merits.