Maloney v. KirkMaloney v. Kirk
Affirmed.
THOMAS, J., concurs.
ROBERTS, J., concurs with opinion.
CALDWELL, C.J., and ADAMS, J., concur and agree with ROBERTS, J.
ERVIN, J., concurs with opinion.
DREW, J., dissents with opinion.
THORNAL, J., dissents and agrees with DREW, J.
ROBERTS, Justice (concurring specially):
We here review on direct appeal a judgment of the Circuit Court in and for the Second Judicial Circuit of Florida, Leon County, which declared inoperative under
“The plaintiff, J.A. Maloney, a resident and qualified elector of Franklin County, filed a complaint against `Claude R. Kirk, Jr., Governor of the State of Florida,\’ asserting the right under
“On August 17, 1967, this Court entered an order dismissing that complaint with the customary leave to amend.
“Plaintiff has now filed a petition for rehearing, a petition for clarification and an amended complaint. A motion to dismiss the amended complaint has been filed. The amended complaint adds little to the case and the petitions for rehearing and for clarification, for the most part, simply take issue with the conclusions heretofore announced by the court.
“However, because of the great importance of the question presented, the Court has permitted a full reargument of the case and has carefully re-examined the authorities.
“Careful analysis of
“It will be observed that
“When subsection 9 of
`Any elector having information of any violation of
Section 99.161 may file a petition in any circuit court of this state in the county in which the person or persons violatingSection 99.161 resides,\’
it does not limit such suits to proceedings against successful candidates. In its broadest aspect,
“However, the complaint does allege facts which, if true, charge Mr. Kirk with some violations of this statute, and, if the statute may be validly applied to him, the complaint must be entertained by the Court.
”
“In the case at bar no charge is made of any expenditure of funds for an illegal purpose as distinguished from alleged failures to follow the letter of the statute in the mechanical process of paying campaign expenses.
”
`(2) The nomination or election to office of any person who wilfully violates the provisions of
§ 99.161 , or cause to violate, may be declared void by the court of competent jurisdiction in which event the nomination for office shall be held as in other cases where a vacancy occurs.`* * *
`(9) Any elector having information of any violation of
§ 99.161 may file a petition in any circuit court of this state in the county in which the person or persons violating said§ 99.161 resides * * *`The final decree entered by the court in each case shall make a finding of fact that
§ 99.161 was or was not violated, as the case may be. If the decree of the circuit court finds as a fact that§ 99.161 was violated by any nominee * * * the officer responsible for issuing the certificate of nomination or office * * * shall immediately revoke the certificate of nomination or office as may have been issued, or in case such certificate has not been issued he shall withhold the same.\’
“It will be observed that
“It is elementary that the legislature may enact any statute not forbidden by the state or federal Constitution. But necessarily implied prohibitions are as binding as those expressed in specific language.
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“It will be observed that the Constitution, in implementing that basic principle stated in
“But the legislature could not enact a law denying the franchise to holders of racing permits,3 or liquor licenses,3 to railroad officials,3 or to utility operators3 on the theory that this would tend to `preserve the purity of the ballot,\’ or prohibit `undue influence\’ upon elections `from power, bribery, tumult or other improper practices.\’ The reason is simple. The Constitution has specified who are qualified electors and thus entitled to vote and the legislature may not deny the franchise to any person to whom it is guaranteed by the Constitution even though the legislature might feel that some classes of persons might abuse the privilege of voting.
“The right of the people to choose their chief executive which is guaranteed by the Constitution vests in the people the right to choose for that office any one of those persons possessing the positive qualifications specified in the Constitution and not disqualified for any of the reasons therein stated. At the same time, it guarantees to every citizen possessing the qualifications, and not subject to any of the disqualifications, established in the Constitution the right to aspire to the office of governor, and if elected, to serve; subject, of course, to the power of impeachment and removal. The legislature may no more deny these rights under the guise of preserving the purity of elections than it may deny the franchise to persons qualified under the Constitution who it might decide would exercise an evil influence in political life.
“When the Constitution has dealt with a subject in such manner as to clearly indicate that it was the intent of the authors that the coverage be complete, the legislature is, by implication, denied the power to take from or to add to the constitutional provisions. This rule is particularly applicable to a specification of who may and who may not serve as governor if duly chosen by the people.
“There was a time when the Constitution forbade a bank officer being elected governor4 and forbade a minister of the gospel serving in the legislature or as governor.5 These prohibitions were clearly expressed in the Constitution. They were later removed by vote of the people, other qualifications and disqualifications being retained. This action of the people constituted a determination that persons following these callings should not, for that reason, be excluded from these public offices. The legislature obviously could not override this determination by the people and, by statute, reinstate these disqualifications.
“The Supreme Court of Florida in the case of Thomas v. State, 58 So.2d 173 [34 A.L.R. 140], discussed in great detail the power of the legislature to fix qualifications of constitutional officers in addition to those prescribed in the Constitution and announced its conclusions in this language, at page 183:
`Our State Constitution, as we have pointed out, prescribes in no uncertain terms that certain persons are disqualified to hold certain constitutional offices, such as, Governor, Members of the Legislature, Justices of the Supreme Court, Judges of the Circuit and Criminal Courts. As to all officers the Constitution further excludes from office all persons “convicted of bribery, perjury, larceny or of infamous crime, or who shall make, or become directly or indirectly interested in, any bet or wager, the result of which shall depend upon any election; or that shall hereafter
fight a duel or send or accept a challenge to fight, or that shall be second to either party, or that shall be the bearer of such challenge or acceptance; but the legal disability shall not accrue until after trial and conviction by due form of law.” This solemn declaration in our Constitution about qualifications or disqualifications to hold public office are conclusive of the whole matter whether in the affirmative or in the negative form.\’
“The plaintiff urges that the statute under consideration does not fix qualifications of candidates for governor, but that it renders invalid a purported election of one who has violated the statute. Under this theory the election is nullified by the act of the candidate and there is a vacancy in the office due to the absence of a lawful election rather than a disqualification of the person elected.
“There are two reasons why this argument cannot be accepted in this case.
“FIRST. The legislature may not do indirectly that which it cannot do directly. To declare an election void and forbid the successful candidate from occupying public office because of conduct which does not go to the freedom of the ballot and the correctness of the counting of the votes and which is not reasonably calculated to have unduly and improperly influenced the voting to such an extent as to prevent the election being a true expression of the popular will is an invasion of the rights of the electorate as well as the successful candidate. It in effect disqualifies the candidate from holding the office notwithstanding the election. This the legislature may not do for the reasons set forth in the cited case.
“SECOND. The purpose of
“This is apparent when the election code as a whole is considered. The Constitution directs the legislature to enact laws `regulating elections, and prohibiting under adequate penalties all undue influence thereon from power, bribery, tumult or other improper practices.\’ Pursuant to this mandate the legislature has enacted many statutes.
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”
”
“Other illustrations could be given, but these demonstrate that the greatest possible abuses of the election processes — those which tend most strongly to impair the purity of the ballot — do not, under the statute, render the election void even though committed by the successful candidate. Yet the most insignificant violation of
“The Court cannot escape the conclusion that the danger feared by the legislature, and to protect against which this statute was enacted, was the evil influences which might be brought to bear upon the officers in the performance of their official duties by persons contributing to their campaign funds. The possible abuse by operators of race tracks, by liquor dealers and by officers of utilities of the influence acquired upon public officers by contributing to their campaign funds is obvious. The same is true of persons who
“If the purpose of
“For these reasons the Court holds that
“This holding does not in any way affect the criminal responsibility of any person who has violated the statute. If the plaintiff feels that the evidence at his disposal justifies such action, he may present it to the proper prosecuting officer or grand jury.
“The Court has carefully considered the cases cited by counsel for plaintiff holding that the legislature may fix the qualifications of statutory officers — even if elective. But these decisions are not in point here. The Court has also carefully studied the decisions from other states expressing conflicting views on the legislative power to enact stringent election codes and disqualify offending candidates. A detailed discussion of these decisions is not justified in view of the fact that the Supreme Court of Florida, in the case of Thomas v. State, supra, has settled the law in this state.
“It is the conclusion of the Court that in so far as
For the reasons stated the trial court then dismissed the amended complaint.
Having heard argument, we have examined and considered the record and briefs, and I would now adopt the decision of the trial court as the decision of this court.
For the foregoing reasons I have concurred in the per curiam judgment of affirmance.
CALDWELL, C.J., and ADAMS, J., concur.
ERVIN, Justice, concurring in the judgment of affirmance with special opinion:
The Circuit Court opinion adopts the view that Section
“(1) Any person who knowingly violates the provisions of
§ 99.161 shallbe deemed guilty of a misdemeanor and subject to a fine of not more than one thousand dollars or to imprisonment for not more than six months.” “In addition thereto —
“(2) The nomination or election to office of any person who wilfully violates the provisions of
section 99.161 , or cause to violate, may be declared void by the court of competent jurisdiction in which event the nomination for office shall be held as in other cases where a vacancy occurs. (Emphasis supplied.)* * * * * *
“(9) (a) Any elector having information of any violation of
§ 99.161 may file a petition in any circuit court of this state in the county in which the person or persons violating said§ 99.161 resides. * * ** * * * * *
“(c) The final decree entered by the court in each case shall make a finding of fact that
§ 99.161 was or was not violated, as the case may be. If the decree of the circuit court finds as a fact that§ 99.161 was violated by any nominee or one elected to office, the attorney general shall send a certified copy thereof to the officer responsible for issuing the certificate of nomination or office and upon receipt of such certified copy such officer shall immediately revoke the certificate of nomination or office as may have been issued, or in case such certificate has not been issued he shall withhold the same.* * * * * *
“(e) Any vacancy in office or nomination on account of any such decree shall not be filled until the expiration of ten days from the date the decree is entered, or if an appeal is taken in time such vacancy shall not be filled until the appeal has been determined by the appellate court and a final decree consequent upon such appeal is entered in the circuit court.”
The provisions of
”
Section 99.161 relates exclusively to campaign funds of candidates for public office. It forbids certain persons making contributions to candidates. It fixes the maximum that any person may contribute. It requires in great detail the manner and time of receiving, reporting and disbursing these funds. It does not limit or regulate the purpose of expenditures of these funds except that it forbids expenditures for advertising in certain publications; it forbids certain expenditures in behalf of a person before he becomes a candidate; it prohibits a candidate paying for the privilege of speaking at a political meeting and forbids candidates paying for political polls not under their control.”
It is readily apparent that the provisions contained in
“* * * To qualify under this law [Ch. 99, F.S. 1951] as a candidate for
Governor, one must take the prescribed oath and an oath of loyalty to the United States and the State of Florida. He must also as a condition precedent to becoming a fully qualified candidate for Governor, appoint a campaign treasurer and designate a campaign depository and file their names and addresses with the Secretary of State. The law carries elaborate provisions regulating the receipt of contributions and the expenditure of funds, and a requirement that detailed reports of these receipts and expenditures be filed weekly with the Secretary of State. “[3] It is inherent in the law that once a person qualifies for the office of Governor, he may go forth, with the apparent sanction of the State through the Secretary of State, to gather funds to further his candidacy, without any restriction whatever as to the total amount, although there are prohibitions against contributions by persons engaged in certain pursuits, and a limitation on the amount that may be donated by any one individual.” (At 189-190.)
Similarly, in Secretary of State v. McGucken, (1966), 244 Md. 70, 222 A.2d 693, the Maryland Secretary of State‘s refusal to certify a gubernatorial candidate for failure to appoint a campaign treasurer pursuant to the statutory requirements was upheld despite the contention that the statute conflicted with the constitutional requirements pertaining to the eligibility of a person to be governor. The Maryland Court concluded:
“[H]e [candidate] appears to claim that the statute, requiring candidates for office to appoint a campaign treasurer, had the effect of imposing another qualification for the office of Governor in addition to those set forth in the Constitution. We do not agree. On the contrary, it is obvious that the statute, which is part of the Corrupt Practices Act, was intended to do no more than enhance the effectiveness of the regulations requiring a full disclosure of the financial aspects of the campaign of a candidate for office. Clearly the Act, including
§ 213(a) thereof, has no bearing on the eligibility of a candidate for office.” (At 695.)
In the light of the foregoing, it is clear that
Despite the fact it is obvious
I would have no difficulty joining in such reasoning if in fact the remedial provisions of
Although I cannot join with the Circuit Court in reasoning that
The propriety of a judicial decree of ouster of such an incumbent constitutional officer under the provisions of
In In Re Investigation of Circuit Judge, etc. (Fla.1957), 93 So.2d 601, this Court adhered to the view that a constitutional incumbent officer subject to impeachment could only be removed before the expiration of his term in the manner provided by the Constitution. The Court stated:
“The same cases also approve the doctrine that where the constitution
creates an office, fixes its terms and provides upon what conditions the incumbent may be removed before the expiration of his term, it is beyond the power of the legislature or any other authority to remove or suspend such officer in any manner than that provided by the constitution.” (93 So.2d at 604.)
While I am cognizant that the Court‘s remarks and holding in the last cited case were directed toward the impropriety of a judicial challenge which indirectly threatened an incumbent officer‘s authority to retain his office rather than the validity of his entry into office, I am convinced that the mandate of that decision is equally applicable to the present case. Regardless of the niceties of the theories underlying the distinction between a person deemed to be an intruder to the office and one whose conduct while occupying the office subjects him to removal or impeachment, I believe the decision cited above acknowledges the overriding principle that once a person has entered upon the duties of a constitutionally established office, his ouster or removal, or what is equivalent thereto, can only proceed in accordance with the express or implicit prescriptions contained in the Constitution.
While the obvious method for removing an incumbent constitutional officeholder rests with the impeachment and removal provisions of the Constitution, other remedies, judicial in nature, have been employed to effect an ouster of an incumbent officeholder. For example, the law is well settled in this state that the common law writ of quo warranto is available for the purpose of determining the title or right to a public office and to oust an incumbent who has unlawfully usurped or intruded into the office or is unlawfully holding it. See 27 Fla.Jur. Quo Warranto § 171. Similarly, special statutory proceedings may be made available to supplement or otherwise augment the function of quo warranto.4 However, so far as concerns the efficacy of these remedies to test the title to a constitutionally ordained office or, more particularly, to adjudicate whether there has been an intrusion into such an office, I think it is fundamental that any judgment creating a divestiture of such office must be predicated on the ground that the intruder is not entitled to hold the office by virtue of the direct prohibitions of the constitution. Thus, there is no inherent impediment to adjudicating an ouster of a constitutional officer, so long as the judgment of ouster is grounded on the necessity to preserve constitutional requirements pertaining to his title or qualifications to the particular office.5 It seems incongruous, however, to countenance a similar remedy as sought in the instant proceedings in the absence of a constitutional mandate authorizing judicial removal or ouster of an incumbent officeholder.
Applying these principles to the present case, I am of the view that so far as
In entertaining the view as announced above, I am of the opinion that in cases such as the present the impeachment process will provide to some extent a method to test responsibility for conduct incidentally arising as a result of violations of the State‘s Corrupt Practices Act. The jurisdictional nature of Appellee‘s amenability to impeachment on charges incidentally connected with alleged pre-election campaign spending violations is not before this Court and nothing said herein is intended to anticipate the proper consideration or determination of such specific question. However, since impeachment is the express method provided by the Constitution for effecting the divestiture of the powers and duties of an incumbent officeholder such as here involved and since it is obvious that removal pursuant to impeachment rather than judicial ouster is the exclusive constitutional means of divestiture, some discussion of the scope of this remedy is necessary in order to focus proper perspective on the view that a judicial ouster is not
“* * * Misdemeanor in office as ground for impeachment has a much broader coverage than the common law misdemeanor as usually defined and applied in criminal procedure. As applied to impeachment, `misdemeanor in office\’ may include any act involving moral turpitude which is contrary to justice, honesty, principles or good morals, if performed by virtue or authority of office. `Misdemeanor in office\’ is synonymous with misconduct in office and is broad enough to embrace any wilful malfeasance, misfeasance, or nonfeasance in office. * * * In words and Phrases, citing Yoe v. Hoffman, supra, [61 Kan. 265, 59 P. 351,] it was said that the phrase `Misdemeanor In Office,\’ when referring to impeachment should be applied in the parliamentary sense and when so applied it means misconduct in office. Something which amounts to a breach of the conditions tacitly annexed to the office, and includes any wrongful official act or omission to perform an official duty.” (At 605-606.) Emphasis supplied.)
The author of the above cited opinion, the late Mr. Justice Glenn Terrell, further elaborated the scope of the grounds for impeachment under the concept of “misdemeanor in office” in an exhaustive study of the precedents in impeachment proceedings. The article or “brief” by the distinguished Justice appears in Deskbook for Members of The Senate Sitting as A Court of Impeachment (1963), p. 3. In this article Justice Terrell summarized authorities on the subject of impeachment and concluded:
“From this it would hardly seem necessary to say more in support of the thesis that impeachment may lie as well for gross misconduct or abuse of trust as for offenses punishable by statute. As crystallized in the cases, state and federal, the weight of authority is that the abuse of official trust in its many and varied ramifications has been the cardinal vice which formed the pretext, if not the motive, of most of the well considered impeachment trials.” (At page 7; emphasis supplied.)
In view of the findings and logic of Justice Terrell, I think it is far from axiomatic that illegal conduct or activities of a prospective holder of the office of Governor prior to his entry upon the performance of his official duties are necessarily beyond the reach of impeachment after assumption of office, particularly where the conduct or activity has an impactual carryover and baneful effect or influence upon the official action or conduct of the officeholder or devolves upon him a positive duty to see that the laws of the State are faithfully executed. For example, if it should appear that such incumbent officeholder has knowingly violated the statutory policy of this state governing the manner and mode of election to office, either singly or in participation with others, and having taken the prescribed oath of office and entered upon the performance of his official duties knowing that said violations have occurred, but fails, and continues to fail, to exercise whatever capacity he may have as a responsible citizen and officeholder to seek the lawful disposition of those violations of which he has knowledge, a breach of public trust may well result sufficient to comport with the necessary grounds for impeachment. Furthermore,
“* * * His [a state prosecutor‘s] duty to prosecute violations of the law continues until the offense committed is barred by the statute of limitations, and if he goes out of office that duty devolves on his successor. The holding of this court in the Advisory Opinion to the Governor, supra, relied on by relator, to the effect that one cannot be suspended during his current term for an offense committed in a previous term, has reference to finished offenses known and condoned by election or appointment, but can have no reference to matters arising from the neglect of a continuing duty of an officer during the time in a current term he holds a commission to discharge the duties of the office.”
One of the objects of the Corrupt Practices Act is to set up and preserve an official record of campaign contributions in order that a public officer‘s performance in office may be scrutinized and evaluated by concerned members of the public in the light of what favoritism may causally result from the contributions.
More particularly related to the present case, it is noted that
It may strain credulity to believe an elected officer will admit or plead guilty to a knowing and flagrant violation of the Corrupt Practices Act, and surrender his office. But, theoretically, when such a violation has been committed it is a breach of public trust for the public officer to harbor the guilty knowledge that he
No doubt it would be more direct, simpler and less complex and expensive if the judiciary were enabled by the Constitution to determine during the incumbency of an elected official whether he is entitled to the office when charged with a violation of
Nothing is intended by the foregoing views to presume to suggest or recommend to the legislative bodies that Appellee is subject to impeachment because of the incidental or residual effects of alleged violations of
For the reasons stated above, I concur in the judgment of the Circuit Court that it lacks authority to grant the relief sought and that the complaint should be dismissed.
DREW, Justice (dissenting):
The appeal before the Court is from an order dismissing a complaint which invoked the specific provision of
This reasoning, in my opinion, fails to make the elemental distinction between the fact of eligibility, which the Constitution defines, and the fact of a valid election, which is left to legislative definition and regulation under the constitutional mandate that the laws shall preserve the purity of the ballot in the elective process and shall prohibit “under adequate penalties all undue influence thereon from power * * * or other improper practices.”3 The Constitution states who may be elected and by what electors, but leaves to legislative control the matter of what acts or practices may prevent an election. Certainly the provision for “adequate” penalties is not in terms or by implication limited to criminal penalties.
We are confronted with a decision that constitutional officers may not be held answerable for acts legislatively defined as corrupt practice in the election process, in a proceeding to determine the validity of their election under a statute which our courts have in an earlier case applied to declare void the election of a lesser public officer (affirmed on appeal by the district court).4 The charges of wilful violation of
I am unable to find that the constitutional prescription of an officer‘s qualifications prevents exercise of the clear legislative authority under the other organic provisions cited, or to agree to what amounts to a judicial negation of the legislative determination of what is reasonably calculated to improperly influence voting. The decisions from other states upon which respondent relies do not in any instance provide direct support for respondent here. Many of the opinions to which we are referred, including that of this Court in Thomas v. State, supra, deal with statutes wholly unrelated to ballot purity.5 In the case of Bradley v. Clarke,6 cited in support of the decree, the court held invalid a statute imposing an oath, but stated:
“* * * in holding that the legislature may not prescribe this additional oath upon a successful candidate, as a prerequisite to this right to take office, and as an additional qualification to those enunciated by the constitution, we do not mean to be understood as saying that the legislature may not with propriety provide that a candidate shall forfeit his office for the doing of any of the inhibited acts, or for the failure to do any of the required acts set forth in the purity of election law. The legislature would have the undoubted power to require an officer elect to file just such a statement as the law now prescribes, and to provide that for a failure so to do he should forfeit his office or his right to office; but, under the strict mandate of the constitution, it has no right to exact this different and additional oath or affirmation before the taking of office, as a prerequisite thereto.” (e.s.)
Well reasoned precedent, on the other hand, has sustained comparable legislation under a constitution which, like our own, prescribed certain qualifications for the office in question:
“There would seem to be little doubt that the clear legislative purpose was to declare that a violation of the act by a candidate should render his election void. It is difficult to read anything else out of it. If the election is void and the candidate has intruded into the office, it is clear that he had no right thereto, and a judgment of ouster excluding him from the office and declaring it vacant is merely a summary and expeditious method of removing him therefrom. He does not by misconduct forfeit an office once lawfully acquired. He never secures title to it. It does not shorten his term, because he was never elected. It terminates the term of his intrusion into the office. * * *
“* * * It is a well-established principle of constitutional law that, where qualifications are prescribed by the Constitution and the methods of removal are provided by the Constitution, the Constitution in those respects is exclusive, and it is beyond the power of the Legislature to prescribe additional qualifications, or to provide for removal of other than the constitutional method. Quite obviously the statute here under consideration was framed with due regard
to these fundamental principles, and so it is provided that violation of the statute by one who receives the plurality of votes prevents an election. A candidate under such circumstances gains no title through such a proceeding even though, as was pointed out in the Markham Case, he secures a certificate of election. When the fact that a candidate has violated the statute becomes established in the manner provided by the statute, the certificate is manifestly of no effect because there was no election. The certificate of election is not a title, it is a mere muniment of title, evidence of title. What the statute in effect does is to create a conclusive presumption that a violation of the statute chargeable to the person receiving the highest number of votes renders his election void, because the result was achieved by practices declared by the statute to be corrupt and illegal. We are cited to no cases, and we find none, holding that it is not competent for the Legislature to enact such a law. * * *” State ex rel. La Follette v. Kohler, 200 Wis. 518, 228 N.W. 895, 907, 69 A.L.R. 348, 366.
I am in complete accord with these views of the highest court of Wisconsin.
The Legislature clearly intended — and in my opinion the people gave it the power to prescribe — that the wilful violation of the laws designed to protect the purity of the ballot and provide for the free and full expression of the choice of the people would result in a forfeiture of the right to hold the office obtained by means of such violations. Any penalty less severe would be inadequate.
Those who voted in this election had a right to assume that their candidate had obeyed the sovereign laws of this State with respect to these matters. Periodically during the campaign lists of contributors were published by the candidate to establish that such was the case. How can it now be said that had these electors known these facts, they would have cast their votes as they did? And, how can it now be said that under this state of facts such failure to disclose — and the violation of these statutes — [as the trial court has said] was “not reasonably calculated to have unduly and improperly influenced the voting to such an extent as to prevent the election being a true expression of the popular will. * * *” That conclusion is the keystone in the arch supporting the decision of the trial court which this Court now affirms.
It has been suggested in the opinion by Mr. Justice Ervin concurring in the judgment of affirmance that impeachment might be resorted to where a constitutional officer subject to impeachment has been guilty of a violation of the election laws designed to ensure the purity of the ballot. The simpler answer to this is that under the Constitution of this State the Governor may be impeached “for any misdemeanor in office.”7 This Court has repeatedly held, as have the courts generally in this country, that acts subjecting an officer to impeachment must be acts committed during the term of his office.8 Such is not the case here.
I would reverse this case and send it back for a trial on the merits.
THORNAL, J., concurs.