51 S.W.2d 509 | Ark. | 1932
STATEMENT BY THE COURT.
H. M. Barney, a citizen and taxpayer of the city of Texarkana, Arkansas, brought this suit in equity against the members of the city council of that city, B. E. Carter, a citizen and taxpayer of the city, and the members of the county board of election commissioners of Miller County, Arkansas, for the review of the sufficiency of the local petition for a referendum on a certain gas rate resolution which had been adopted by the city council, and to enjoin B. E. Carter from further prosecuting a mandamus action then pending in the circuit court to compel the city council to call said referendum election on the gas rate resolution adopted by said council, and to enjoin the other defendants from calling or holding a referendum election on said gas rate resolution. The basis of the action was that no copy of the measure to be referred was ever attached to or filed with said petition for referendum as required by the statute, and that said petition was not in the form required by the statute.
The defendants answered, and, among other defenses, set up that of res judicata. The ground upon which this defense is based is the case of Southern Cities Distributing Company v. Carter,
In the trial of the case, it was agreed by the defendants that no copy of the gas rate resolution filed with the city clerk on June 27, 1930, was circulated with or attached to the petition for referendum filed with and certified to the city council by the city clerk. The city clerk's certificate of the sufficiency of said referendum petition was made on June 30, 1930. The resolution was also introduced, by which the city council on July 8, 1930, granted thirteen of the original signers of the original petition for referendum permission to withdraw their names therefrom and denied said petition because of an insufficient number of qualified signers. The petition of B. E. Carter for a mandamus writ filed in the circuit court was also introduced in evidence. In it he alleged that no suit had been filed in the chancery court to review the finding of the city clerk.
Other evidence was introduced which we do not deem it necessary to set out. All the proceedings in the mandamus suit brought by B. E. Carter against the city council of Texarkana, Arkansas, including the proceedings in the Supreme Court, were introduced in evidence. Such other facts as are deemed necessary to a proper determination of the issue raised by the appeal will be stated or referred to in the opinion.
On the 13th day of May, 1932, the case was submitted to the chancery court upon the pleadings, exhibits thereto, and the evidence taken in the case. The chancellor found that the complaint of the plaintiff was without equity, and it was decreed that it be dismissed at the cost of the plaintiff. The case is here on appeal. (after stating the facts). The decree of the chancery court was based upon a holding by the court that the plea of res judicata of the defendants should be sustained. It is elementary that all questions which might be litigated in an action of which the court has jurisdiction are res judicatae as to all parties thereto and their privies. The doctrine of res judicata is based on public policy, reason and experience. If all questions that have been decided by the court are to be regarded as still open for discussion and revision between the same parties and their privies, there would be no end of litigation until the ingenuity of counsel and the financial ability of the parties had been exhausted.
Then, too, the decision of the court in the mandamus suit on the former appeal became stare decisis and we are bound by it on the present appeal. It was there held that, after the sufficiency of a referendum petition was duly certified by the proper officer, a signer was not entitled to withdraw his signature in the absence of fraud. The court also said that the correctness of the city clerk's determination of the sufficiency of the petition for referendum could only be made in the chancery court. Southern Cities Distributing Company v. Carter,
Under our statute, a defendant, when sued at law, must make all the defenses he has, both legal and equitable. If any of his defenses are expressly cognizable in equity, he is entitled to have them tried as in equity proceedings, and, for this purpose, to a transfer of the case to the chancery court. The principle of res judicata extends not only to the questions of fact and of law which were decided in the former suit but also to the rights *1127
of recovery or defense which might have been but were not presented. In short, the uniform rule adopted by this court is that the judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which might have been interposed in the former suit. Taylor v. King,
Mandamus only lies to compel a person to do that which it is his duty to do without it, and cannot be used to compel the performance of that which is not lawful. A party, to be entitled to the writ, must show that he has a clear, legal right to the subject-matter, and that he has no other adequate remedy. Arkansas State Highway Commission v. Otis Company,
The doctrine of res judicata applies to the issues that might have been litigated in proceedings to obtain a writ of mandamus. 18 R.C.L., 318, p. 358; Kaufer v. Ford,
In Sauls v. Freeman,
In State v. Sparrow,
The same principle was recognized and applied by the Supreme Court of North Dakota in a county seat election in Dimond v. Ely,
The Southern Cities Distributing Company was allowed to be made a party defendant in the mandamus suit, and all other interested parties, including the plaintiff in this action, might have been made parties to that suit. If they thought that the principles of law decided in the case of Townsend v. McDonald,
Having failed to set up this defense to the mandamus proceeding, the parties to that suit and their privies are barred by the judgment in that case from seeking to further adjudicate the matter in this case. Therefore the decree will be affirmed.