*1 filed with the timely signed case the order was In this been of the court. A has question not with the clerk judge, of the above rule quoted conflict possible raised about one of our rules of civil procedure. with appellate procedure 5(d) R. Civ. P. provides: The
Filing Judge. judge may permit papers with the him, which event to be filed with he shall or pleadings date and forthwith transmit them to filing note thereon the the clerk. the office of in Sullivan v. Wickliffe, supra,
We addressed this issue entered, or filed that an order cannot be deemed and explained clerk, is and it contains just signed judge with the because it filed, when in fact it not filed with the clerk. a recitation that is otherwise, If our were could not party rules prevailing discover record whether the case was ended. by public
Motion for a the clerk is denied. rule on BRYANT,
Winston General v. Dr. Attorney ENGLISH, Arthur Republican Party Arkansas, Arkansas, the Democratic Party Tucker,
and Martin Borchert v. Jim Guy Lieutenant Governor 92-1284 843 S.W.2d Court
Supreme of Arkansas delivered Opinion December *2 Gen., Chief Royce Griffin, Dep- Bryant, Att’y by: Winston Gen., for Att’y appellant. uty Trotter, McGowan, Farris, & by: O’Connor
Youngdahl, Salors, for Dr. Arthur and Kimberly appellee Scott Trotter English.
Karr, Hutchinson, Stubblefield, Hutchinson & Asa for by: of Arkansas. Party appellee Republican Foster, Firm, Rose Law Vincent Jr. and Webb L. by: Hubbell, for Democratic of Arkansas. Party appellee
Gill, Wallace, Green, Clayton, Elrod & John Flemming, by: Gill, P. Martin Bochert. appellee
L. Scott Stafford, Jim Tucker. cross-appellant Guy 6,1990, Robert H. Dudley, Justice. On November Gover- Governor, nor Bill Clinton was re-elected to the Office and Jim Tucker was elected to Guy of Lieutenant Office Governor. Both were elected and commissioned to terms of office four-year that commenced on 3, 1992, 1991. On January November later, little over twenty-one months Governor Clinton was elected to the Office of President of the United States of America. It is that anticipated Governor Clinton will resign from the Office of Governor before which is the oath of day the Office of President of the United States will be administered. The result will be that a will exist the Office of Governor, and more than twelve months will remain on the four- year term to which Governor Clinton was elected.
This suit for a declaratory judgment was filed an requesting of the interpretation various provisions of the Constitution of Arkansas regarding succession to the Officeof Governor when the Governor with more resigns than twelve months in the remaining term of office. The trial court entered a declaring that judgment upon resignation Clinton, of Governor and duties powers Governor, of the itself, Office of but not the office will devolve upon Lieutenant Governor for the remainder of the four-year term. The trial court also ruled that a fill election to special office is not required that the Lieutenant not authorized to appoint successor to the Office of Governor. General Attorney Winston Bryant judgment, from the appeals and Lieutenant Governor Guy Jim Tucker from cross-appeals that of the judgment declaring that the Office of Governor part does not devolve the Lieutenant upon Governor. On direct appeal, we affirm the trial court’s judgment and hold that upon Governor, resignation of a duties of the Office of Governor devolve the Lieutenant Governor upon for the remain- term, and, der of the four-year on we reverse and cross-appeal, hold that the Office of Governor itself devolves the Lieuten- ant Governor.
I. Procedure Act, The Declaratory Judgments Ark. Code Ann. 16- §§ 111-101 —-16-111-111 (1987), that the of the purpose act is “to afford relief from . . . with uncertainty to . . . respect status,” and the act is to be liberally construed to that end. The in the trial parties stipulated court that they anticipate Governor Clinton will from the resign Officeof and the trial court held that a justiciable controversy exists. We have concluded that we should decide the issue because it is a matter of significant public interest and a matter of constitutional law. See N.A.A.C.P., Bennett v. 370 S.W.2d
II. Background Neither the 1836 Constitution of Arkansas nor the 1861 constitution for the provided office of Lieutenant Governor. Those constitutions the President of placed the Senate *4 next of line succession for the Office of they required election if special the remaining term of the Governor exceeded a certain constitution, of time. The period time, for the first created the office of Lieutenant Governor and for a provided Const, statewide election to the 1864, VI, office.Ark. art. 19. § The 1868 constitution also provided for a Lieutenant Governor and stated that if the vacant, Office of Governor became Lieutenant Governor served during the “residue of the term.” It made no provision a special election to fill the vacancy. Const, 1868, VI, art. 10. §
Unfortunately, Arkansas, the present Constitution of 1874, in adopted did not originally for the office of provide 6, Lieutenant Governor. Article sections 12 and 13 of the present constitution, originally placed Senate, President of the House,
followed of the in the line of by Speaker gubernatorial succession, 6, but article section 14 election to special required fill a in the Office of Governor when the office vacancy was vacated more than twelve months before the of the expiration 6, Governor’s term. Article section 12 of the constitution present “death, that in originally the event of the conviction provided or failure to impeachment, resignation, absence from the qualify, Governor,” State or other of the disability and duties of the office devolved on the President of the Senate “for the term, removed, remainder of the or until the be disability or a Governor elected and When qualified.” construed with the 14, election special of article procedure the reason for each of these three limitations on the President of the Senate’s of service is obvious. period Each limitation on service was tied to a different disabled, If the contingency. Governor became President of the Senate served as Governor until the disability was removed. If the office death, became vacant through im- peachment, resignation of the Governor less than twelve months term, before the end of the Governor’s the President of the Senate served “for the remainder of the term.” If the office occurred more than twelve months before the end of the term, Governor’s the President of the Senate served until “a governor elected and qualified” at a special election called [was] accordance with article section 14.
Only after his days on inauguration Governor John Sebastian Little suffered a nervous breakdown. Commission, Arkansas History 1 Annals Arkansas 1947 239 (Dallas ed., T. Herndon 1947) On Febru [hereinafter Annals]. 11, 1907, ary Governor Little Moore, wrote Senator John I. Senate, President of the and asked him to assume the duties of Governor. Senator Moore served as acting Governor until the adjournment of the General on Assembly 1907. Id. May at 239. He was succeeded as acting Governor Senator X.O. Pindall, who was elected President of the Senate before its shortly adjournment. Senator Pindall served as chief executive for sixteen months 15, 1907, from May until January when he was replaced Senate, elected newly President of the *5 Jesse M. Martin. Id at 240. Senator Martin was acting Governor for three until the days inauguration of W. George Donaghey, who had been elected Governor at the general election of 1908. sum, at 240. In between during two-year period January Id. 15, 1907, 15, 1909, the affairs of Arkansas were in Davis, hands of no less than six Jeff John governors: Sebastian Little, Moore, Pindall, Martin, John I. X. O. Jesse M. and George 233, id. See at 239-41. Donaghey.
The
seven months
were even
first
of 1913
more trying; they
to a gubernatorial
amounted
succession crisis. The crisis was
when Governor Joe T.
triggered
resigned
Robinson
from office
his
to the
following
election
United States Senate. Id. at 247. W.
K. Oldham was President of the Senate when Governor Robinson
but because Senator Oldham
resigned,
was
article
prohibited by
5, section 18 of the constitution from serving
the end of the
past
session, the
legislative
Senate elected J. M. Futrell as its Presi-
13,
adjournment
dent
on March
prior
1913. See id. at 251.
6,
12,
Oldham argued that
to article
pursuant
section
he suc-
ceeded to the Office of Governor when Governor Robinson
did
resigned and
not cease to be
when
Governor
a new Senate
President was elected. Futrell
that he became
argued
Governor
virtue of his election as
President of the Senate two
after
days
Oldham,
resignation.
Robinson’s
Futrell
386,
III. Amendment 6 In February Kidder introduced Representative House Joint Resolution for a constitutional amendment
193 Lieutenant Governor. In was a would create the office of part, 5, in the constitution. The March the 1868 replication provision 1913, argument wrote: “There is no sound Arkansas Democrat governor’s office It fixes the status of the against the proposed. and does with a election to fill a vacancy.” successor away special 6, 1913, 1874 On March Amendment 6 to the constitution was 1913 1527. General See Ark. Acts proposed Assembly. to, Amendment 6 was submitted the voters at approved by, 956, Gray, See v. 170 281 general 1914 election. Combs Ark. (1926), history S.W. 918 for additional the adoption. 6, section 4 “In case of Amendment provides: Governor,. [resignation] of the . . the of the duties office,shall devolve the Lieutenant Governor for the residue amendments, of the . . .” term. constitutional we interpreting court, have that a said in order to determine the and the meaning amendment, coverage extent of of a constitutional look to the may history of times and condition existing at the time of the of the amendment in order adoption to ascertain the mischief to be remedied and State, the remedy Huxtable v. 181 adopted. 533, 26 Ark. S.W.2d (1930). 577 “Amendments to a constitution regarded are not as if had they parts been of the original instrument are treated as a force to the having superior original to the extent to which in are conflict.” Grant v. they 826, 106 Ark. Hardage, 153 S.W. 827 (1913). Repeal implication when a accomplished constitutional amendment takes a whole anew up subject and covers the subject entire matter the original Pate, constitution. McCraw v. S.W.2d Gordon, 494 94 (1973); v. 237 Berry Ark. 376 S.W.2d 279 (1964); Downer, Pulaski Ark. County 10 588 Further, (1850). a constitutional amendment is to be interpreted and understood in its most natural and obvious Carter v. meaning. Cain, 179 14 S.W.2d
Amendment took subject a new up guberna matter of torial succession. The citizens wanted to* any more prevent gubernatorial succession crises and sought to change proce dure set previously out in article 6. It is impossible to reconcile amendment, natural and meaning obvious of the language of the above, quoted with the special procedure election set out origi nally in article in the factual situation before us. If the appellant Attorney suggested meaning General’s were mean the “residue of the term” only and we construed adopted, until the next only special takes office Lieutenant Governor election, would, amendment amount to part, the constitutional reasons, that amendment For these we hold futility. an exercise Lieutenant Governor serves as section 4 that the *7 the term and not until a new merely for the residue of Governor a election. Governor is elected at special the election set out We do not decide whether special process viable if the Lieutenant Governor becomes in article 6 is still us. Governor and then vacates the office. That issue is not before The trial court ruled that the and duties of the Office “powers Governor, devolved the of but not the Office of Governor” upon ruling Lieutenant Governor. The trial court’s was undoubtedly Oldham, 386, based on our decision in Futrell (1913), certainly language S.W. 502 and that case contains that, 6, article the President of the Senate exercised stating under the of the Office of but did not become powers actually reasons, we Futrell holding Governor. For several think the of resigns should be when the Governor and his distinguished place is taken the Lieutenant Governor under the of by provisions amendment 6.
First, the framers of amendment 6 took verbatim from 6, article section 10 of the 1868 constitution the “the phrase and duties of the office shall devolve the Lieutenant powers Governor,” having and did so without the they opportunity read this court’s in Futrell. The House Joint Resolution opinion 6,1913, amendment on eighteen 6 was March proposing adopted days before this court handed down the decision in Futrell on 24, March 1913.
Second, Futrell, deciding this court was con- obviously cerned the the President of Senate had never been elected by a direct statewide vote—he had been elected the directly only by voters of a local state Senate district. The opinion provides: 6,
The central thought article sections and [of 14] is, that the office of Governor is never to be filled at all themselves, the by direct vote of the except people is made the Constitution for a provision only temporary of the devolution the duties and emoluments of officeupon exists. while functionary some other 394, 155 section at 505. amendment 107 Ark. at S.W. Under vote now statewide Lieutenant Governor is elected direct the for term as the at the same time and the same of people Governor. today, factor is that distinguishing
An equally important is a the Lieutenant Governor under amendment the government, member of the executive branch of but under Oldham, President interpreted article as in Futrell v. was a member branch remained such legislative Senate while the duties of an performing governor until election only could be called. The opinion provides:
So, if the time discharging being person Senate, duties of still President of he be cannot Governor. He exercise the may — Governor,” latter office “exercise the office of it is *8 section, otherwise in another he fill expressed does not the two offices.
107
at
It governor a lieutenant branch has treated the executive century The first office. governor’s filled a vacant when he governor Harvey when Lieutenant Governor in 1926 instance occurred E. Martineau. Historical John succeeded Governor Parnell It also State-Arkansas Secretary Report the Office from resigned Dale Bumpers occurred when Governor commis- Bob was Riley Lieutenant Governor of Governor and resigned when David Pryor as well as governor, sioned was commissioned as Joe Purcell and Lieutenant Governor Office. In of State’s Secretary See Commissions Governor. 6, and addition, the drafters of amendment we are that persuaded it, 2 would knew that article section the voters who approved of the “The executive supreme power remain in It place. provides: be ‘the styled chief who shall magistrate, State shall be vested in a ” the State of Arkansas.’ Governor of amendment we hold that Accordingly, Governor, the Lieuten of the resignation that State of Arkansas.” “the Governor of the ant Governor becomes amend argument One of the advanced parties Lieutenant Arkansas ment 29 of the Constitution of requires We reject a new governor. summarily Governor to appoint 6 specifically provides and hold that amendment argument *9 a in the Office of Governor. filling cross-appeal. on direct and reversed on appeal Affirmed Corbin, JJ., in part. dissent in and concur Glaze and part Justice, in dissenting concurring in and Glaze, part Tom with disagreement in and dissent in part. My I concur part. part merits. to do with its on the nothing holding court has majority merits, fact, it to the In I with its decision as totally agree pertains the merits. reached disagree that this court procedurally and, such, as judgment action declaratory This lawsuit is a
197
must exist. In stating
that a
actual
requires
present
controversy
following:
this court stated the
well-recognized principle,
this
is
Judgment
only
The
Statute
Declaratory
applicable
where
is a
actual
all
controversy,
there
and
present
interested
are
where
parties,
only
made
persons
issues are
It
not
to
justiciable
does
undertake
presented.
legal
decide the
effect of laws
which
state
facts
future, contingent or uncertain. A declaratory judgment
will not be
unless the
granted
danger
dilemma
plaintiff is
not
present,
contingent on
happening of
events;
hypothetical
to his
prejudice
position
future
must be actual and
genuine
not merely possible,
speculative, contingent,
added.)
or remote. (Emphasis
v.
Andres First
Finance
230 Ark.
Development
Corp.,
(1959);
Hill,
Justice John Fogelman A. stated the following reasons in foregoing rule a concurring where he opinion said:
The declaratory judgment act is not intended be the to vehicle for to advisory having not opinions persons justiciable with their controversy adversaries apparent a court having better, no jurisdiction. It is far my opinion, that important questions, constitu- particularly ones, tional be out on pounded the anvil of advocacy by academic, persons real, whose interests are not with vitally all interested before the parties court. Allen,
Block S.W.2d — Let me first out the point obvious Governor Bill Clinton is not a to this party Second, declaratory judgment action. nowhere in the record before this court is shown that the Governor has resigned or he intends resign his to attempt office. an circumvent this obvious procedural defect and the parties record, the parties appear to rely upon the Democratic Party Arkansas’s brief wherein it argues follows:
The fact that Governor Clinton’s exact resignation date be may not known is not a to determining bar *10 issue. Clinton succession cannot serve both as Governor and President. Article Section 11 of the Arkansas Constitution that holding no “person State, the office under of this or of the authority United States, Governor, shall exercise the office of as except herein Governor Clinton’s provided.” resignation now that he been elected President cannot be has doubted. Governor 20,1993, resign Clinton will no later than in order Thus, to assume the Presidency. is assured that there will be a in the Governor’s officeno later than 58 vacancy days after November 23rd. The in the office resulting Governor is the fact situation feared hardly hypothetical the courts. The to this lawsuit cannot or assume parties stipulate how a future; not a or witness in this case in person party might act namely, Governor Clinton will vacate the Governor’s office. The court is in majority wrong make allowing parties to such a when this stipulation, especially factual issue could have been having resolved made the Governor a to this action party and resignation his could then have been confirmed. Nor easily was the Governor or called as a deposed resignation witness so the issue could be to rest. put Clearly, Governor Clinton has an interest this cause since this case affects not his duties only responsibilities governor, but also involves the emoluments he receives from that office. Until the Governor resigns, succes- sion issue in this cause remains presented purely hypothetical contingent his vacating office of Governor.
In an obvious to avoid the Governor’s attempt absence this lawsuit and to cure a record failing to reflect the Governor’s resignation, the Democratic cites Party Article Section 11 of the Arkansas Constitution which is captioned “Incompatible Offices” and provides, “No member of Congress, or other person holding office State, under the authority this United States, shall exercise the office of as herein except provided.” this citing constitutional language, Party concludes the Governor’s resignation now that he has been elected President course, cannot be doubted. Of this is an or conclusion assumption parties this action are unable to make. Clearly, above language constitutional does not mean Governor Clinton automatically resigns or vacates his officeupon
199 addition, in as President. In such dual officeholder being sworn ouster, not issues are decided warranto quo declaratory judgment, proceedings. like the court’s and majority natural inclination is much My — (1) in this case the Governor will likely resign
the parties 20,1993, will then (2) sometime to exist prior However, will be a (3) reality.' the succession problem in this on the actual facts of this case is to indulge assumption an entire of law that this court ignore body only grants judgment relief when a actual declaratory present controversy exists and all interested ar made This court’s persons parties. to address facts apparent willingness the hypothetical present clear, and, view, here breaks with will prior precedent my henceforth to permit parties to future facts and events in stipulate order to obtain relief and This declaratory advisory opinions. court, instead, should require Governor Clinton in presence witness, this lawsuit either as a or a so a party finding to his resignation from or of office vacating can be established. Only exist, then will an actual controversy allowing this court to decide the succession issue. —
One last
point
Democratic Party, recognizing jus
as a
ticiability
problem, asserts this court nevertheless can declare
the law concerning the Governor-succession issue because this is
a case of extreme public
assertion,
of this
importance.
support
it cites Robinson v.
Commission,
Arkansas Game and Fish
Ark.
565 S.W.2d
(1978);
Taylor,
Moorman v.
180,
Corbin,