Spires v. Members of Election Commission

Robert H. Dudley, Justice. Appellants, Betty Spires and Cynthia Buckwalter, liquor store owners, filed a complaint alleging that a local option election was invalid. Appellees, members of the county election commission, filed a motion to dismiss because: (1) the complaint failed to state facts upon which relief could be granted, and (2) the court lacked jurisdiction because the complaint was filed outside the time limit for challenging a local option election. The trial court granted the motion to dismiss on the second basis, lack of jurisdiction to hear the complaint because it was not filed in time. The trial court reached the right result. Appellants argue that this case should not be reviewed as an election contest, but, instead as a suit for declaratory judgment. The reason for the argument is if this is not an election contest, they would not be subject to the shorter period of limitation. While the relief prayed, “that the election ... be declared null and void,” indicates it is an election contest, it is an issue which we do not reach because the complaint failed to state facts upon which relief can be granted. The complaint recites that a local option election was held in Union precinct, and that, as a result, the area has been declared dry. The only allegation of irregularity in the election is that the “election is invalid as there is no duly established precinct known as Union Precinct in existence as required by Ark. Code Ann. § 7-5-101.” This allegation is a conclusion of law and not a statement of facts upon which relief can be granted. ARCP Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” Rule 12(b)(6), which provides for the testing of the complaint, must be read in conjunction with Rule 8, which sets out the requirements of a complaint. Rule 8 provides: “[A] complaint. . . shall contain. . . (1) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief.” This complaint states the conclusion that a district was not established as required by Ark. Code Ann. § 7-5-101 (1987). It does not state whether the alleged deficiency is a failure of the county board of election commissioners to keep records as required by the statute, or a failure to accurately describe the boundaries, or a failure to file a copy of the order with the county clerk, or a failure to give notice of a change in boundaries, or when such irregularities occurred, or whether elections previously have been held in the precinct. Thus, it cannot be determined from the complaint whether appellants had a pre-election remedy, and waived it, and then, after losing the election, sought this post-election remedy. If that should be the case, as was strongly suggested in the oral argument, appellees may have waived their right to contest the election. Because the complaint does not meet the ARCP Rule 12(b)(6) test, and the trial court could not determine the factual basis of the complaint, the trial court should never have reached the issue of the time limitation for contesting the election. Still, the complaint was correctly dismissed. Appellants also allege that their rights to due process and equal protection were denied. The allegation is: To the extent that Act No. 108 of the Arkansas Acts of 1935 or Initiated Measure No. 1 of the Initiated Measures of 1942 apply to this case, the same violate plaintiffs’ rights to due process and equal protection under the law, and are invalid as applied to plaintiffs under Article 2, Sections 3 and 8 of the Arkansas State Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. The foregoing averment likewise does not contain a statement of facts in ordinary and concise language which shows that the pleaders are entitled to relief. Further, it would have been error for the trial court to have heard the allegation of the unconstitutionality of the acts without notice being given the Attorney General. Ark. Code Ann. § 16-11 l-106(b) (1987); City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), cert. denied 462 U.S. 1111 (1983). The dismissal in this case should have been for failure to state facts upon which relief could be granted and should have been without prejudice. However, it was dismissed on a different basis, and the dismissal was with prejudice. Accordingly, as is our practice in such cases, we affirm the result but modify to the extent the dismissal is without prejudice. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984). Affirmed as modified. Glaze, J., concurring in part and dissenting in part.