Williams v. Douglas

Conley Byrd, Justice. The issue on this appeal is whether Art. 5 § 10, Arkansas Constitution, prohibits a Senator during his term of office from being elected and serving as a member of the board of directors of a school district. The Chancellor ruled upon a motion for summary judgment that appellee, Bob W. Douglas, Senator from the Eighth Senatorial District, could be so elected and serve. The appellants Thelma Williams, et al, taxpayers, appeal. Article 5 § 10 of the Arkansas Constitution upon which appellants rely provides: “No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.” Appellee in his motion for summary judgment relies upon his election as a school director at the March 10, 1970, election. It was admitted that the election occurred during the term for which he was elected as a Senator. In support of the trial court’s action appellee suggests that the office of school director is not a “civil office” within the meaning of Art. 5 § 10 and, in the alternative, that school directors were excepted from the ban of Art. 5 § 10 by the provisions of Art. 5 § 7 which provides: “No judge of the supreme, circuit or inferior courts of law or equity, Secretary of State, Attorney General for the State, Auditor or Treasurer, recorder, or Clerk of any court of record, sheriff, coroner, member of Congress, nor any other person holding any lucrative office under the United States or this State (militia officers, justices of the peace, postmasters, officers of public schools and notaries excepted) shall be eligible to a seat in either house of the General Assembly.” We find no merit in the suggestion that the office of school director is not a “civil office.” In the first place the Constitution Art. 14 § 4 provides: ‘The supervision of public schools and the execution of the laws regulating the same shall be vested in and confided to such officers as may be provided for by the General Assembly.” Also Constitutional Amendment 40 provides: “The Board of Directors of each school district shall prepare, approve and make public. . . a proposed budget. ...” In both Reiff v. Redfield School Board, 126 Ark. 474, 191 S. W. 16 (1916), and A. H. Andrews Co. v. Delight Special School District, 95 Ark. 26, 128 S. W. 361 (1910), we held that school directors were public officers. In so doing we pointed out that the rules respecting their powers are the same as those that are applicable to the powers of public officers generally. Other States generally hold that school directors are public officers, State ex rel McKittrick v. Whittle, 333 Mo. 705, 63 S. W. 2d 100, 88 A. L. R. 1099 (1933); Barton v. Haight, 169 Okla. 481, 37 P. 2d 968 (1934); Norton v. Letton, 271 Ky. 353, 111 S. W. 2d 1053 (1937); and State ex rel Barnhill v. Thompson, 122 N. C. 493, 29 S. W. 720 (1898); and that as such a school director is a “civil officer”. In re Election of School Committee of City of Woonsocket, 28 R. I. 629, 72 A. 417 (1903). It was pointed out in Starnes v. Sadler, 237 Ark. 325, 372 S. W. 2d 585 (1963), that emoluments or pay was not a criterion for determining that an office was a civil office pursuant to Art. 5 § 10. Thus we conclude that the office of school director is a civil office pursuant to Art. 5 § 10, supra. One of the fundamental principles or rules in the construction of a constitution is that effect must be given to every part and that, unless there is some clear reason to the contrary, no portion of the fundamental law should be treated as superfluous, meaningless or inoperative. When the issue under consideration is studied with the view that no constitutional provision enjoys a preference and that none should suffer subordination or deletion, it at once becomes apparent that the two provisions here can be construed according to their plain language and without conflict. In the Legislative Article (Article 5), the framers in Art. 5 § 7 dealt in terms of who was ineligible to a seat in either house of the General Assembly. In stating that “No judge of the supreme. . . court. . . member of congress, nor any other person holding any lucrative office under. . . this State. . . shall be ELIGIBLE to a seat. . .,” the framers made an exception- in favor of militia officers, justices of the peace, officers of public schools and notaries. In doing so the framers apparently recognized that each house of the General Assembly must take the excepted officers as they found them for seating purposes and that those members could simultaneously hold both offices for there is no prohibition to the contrary. However in Art. 5 § 10 the framers took up the eligibility of a member, once he was seated, to accept by appointment or election a civil office during his term of office, and here the PROHIBITION is that no member “. . .' shall. . . be APPOINTED or ELECTED to any civil office under this State.” The framers made no exception to the PROHIBITION in favor of militia officers, justices of the peace, postmasters, officers of public schools and notaries. Thus, it follows that when Art. 5 § 7 is read with reference to the ELIGIBILITY of persons entitled to a SEAT in the General Assembly and that when Art. 5 § 10 is read as a PROHIBITION upon a member after he is seated, there is no apparent conflict betwéen the plain meaning of the two sections. Having determined that the office of school director is a civil office within the meaning of Art. 5 § 10, it follows that the Chancellor erred in granting summary judgment in favor of appellee based upon the March 1970 election. It has been suggested that if it is permissible for a school board director to be seated as a member of the General Assembly and thereafter serve in both capacities, it is illogical to hold that the offices are incompatible when a member of the General Assembly runs for re-election to the office of school director. To this argument, we only point out that Art. 5 Sec. 10 does not deal in terms of “incompatability.” The people in creating the offices of Representative and Senator had the right to assure unto themselves that a person so elected would use the office for purposes of representing the people rather than for self promotion such as seeking an election or appointment to office. That the PROHIBITION in Art. 5 § 10 was not intended to be restricted by the exception in Art. 5 § 7 can be seen from similar provisions in prior constitutions. In Article IV of the 1856 Constitution we find the following provisions: “§ 10. No judge of the supreme, circuit or inferior courts of law or equity, secretary of state, attorney for the state, state auditor or treasurer, register or recorder, clerk of any court of record, sheriff, coroner, member of Congress, nor any other person holding any lucrative office under the United States or this State (militia officers, justices of the peace, postmasters and judges of the county court excepted), shall be eligible to a seat in either house of the General Assembly.” “§ 14. No senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office under this State which shall have been created or the emoluments of which shall have been increased during his continuance of office, except to such office as shall be filled by the elect:on of the people.” In Article IV of the 1861 Constitution the subject matter here involved was set forth as follows: “§ 10. Militia officers, justices of the peace, and postmasters, are declared to be eligible to either branch of the General Assembly; but no person who now is, or who shall hereafter be a collector or holder of public money, shall be eligible to either branch of the General Assembly, nor to any office of profit or trust, until he shall have accounted for and paid over all sums for which he may be liable; and no person holding any office of trust or profit under the Confederate States (except postmasters) shall be eligible to any office of trust or profit belonging to either of the three departments of this State.” “§ 13. No member of the General Assembly shall be elected or appointed to any civil office in this State, which shall have been created, or the emoluments of which shall have been increased, whilst he was a member thereof, except he be elected to such office by a vote of the people, and that no member of the General Assembly shall be elected to any office within the gift of the General Assembly during the term for which he shall have been elected.” The 1864 Constitution treáted the subject in Article IV in this language: “§ 10. No judge of the Supreme, Circuit or inferior courts of law or equity, Secretary of State, Attorney-General of the State, District Attorneys, State Auditor or Treasurer, Coroner or member of Congress, nor any other person holding any lucrative office under the United States or this State (militia officers, Justices of the Peace, postmasters and judges of the County Courts excepted), shall be eligible to a seat in either House of the General Assembly.” § 14. No Senator or Representative shall, during the term for which he shall have been elected, be appointed to any civil office under this State which shall have been created, or the emoluments of which shall have been increased, during his continuance in office, except to such office as shall be filled by the election of the people.” The “Carpet-bag” Constitution of 1868 (Article V) contained only the following provision: “§ 11. No person holding any office under the United States, or this State, or any county office, except postmasters, notaries public, officers, of the militia and township officers shall be eligible to or have a seat in either branch of the General Assembly, and all votes given for any such pérson shall be void.” The experiences of this State with the “carpet-baggers” and the Brooks-Baxter War are history but it was after those experiences that the people enacted the'PROHIBITION set forth in Art. 5 § 10. This historical review rather amply demonstrates that, in the enactment of the PROHIBITION, the people were attempting to correct something more than that which is referred to as “incompatibility”, and that the PROHIBITION is not affected or diluted by the exception set forth in Article 5 §7. Appellants hereby request that we grant their motion in the trial court for summary judgment and that the Miller County Board of Election Commissioners be directed to hold a special election as soon as possible. The latter request obviously cannot be granted because the Election Commissioners are not parties. On the summary judgment request, we note that appellants did. not completely abstract their request therefor and upon the abstract and briefs before us it is impossible to say that their motion should be granted. Instead, we only reverse the order of the court granting appellee’s summary, judgment and remand for proceedings not inconsistent with this opinion. Reversed and remanded. Harris, C. J. and Holt, J., dissent.