Howell v. Howell Stevens v. Stevens , 213 Ark. 298 ( 1948 )

The majority — as I read the opinion — is holding (a) that all of Act 42 of 1947 (hereinafter referred to as "Act 42") is void because of Section 4 of the Act, and (b) that the Second Division of the First Chancery District is not even a de facto court, and that Judge Ruth F. Hale, Chancellor of the court, is not even a de facto judge. The effect of this holding is to render void ab initio all of the judgments and decrees that Judge Hale has rendered. The majority option is sweeping and far reaching; I dissent from each and both of the conclusions reached by the majority.

The Legislature certainly had the right to create the Second Division Court of the First Chancery Circuit. Act 42, with the exception of 4, is patterned after and is entirely similar to Act 372 of 1923 (hereinafter referred to as "Act 372"), which created the Second Division Court of the Seventh Chancery Circuit. The validity of the said Act 372 was upheld by this court in the case of Gordon v. Reeves, 166 Ark. 601, 267 S.W. 133. A comparison of the two Acts leads to the inevitable conclusion that the purpose of Act 42 was to relieve the congestion existing in the Pulaski Chancery Court, just as Act 372 was to relieve the congestion existing in the chancery courts of Union and Ouachita Counties, which were only two of the several counties in the Seventh Chancery Circuit. If the purpose of Act 372 was to relieve the congestion in the chancery court, how can the majority say in the case at bar that the primary purpose of Act 42 was to elevate Judge Ruth F. Hale to the position of Chancellor? And, yet, that is what the majority opinion means. Otherwise, the majority would have given some effect and significance to 12 of Act 42, which section reads:

"The invalidity of any section or sections of this Act shall not affect the validity of the balance of said enactment."

I think 4 of Act 42 is unconstitutional, in that the Legislature attempted to fill a vacancy. But I think that with 4 stricken from the Act, there still remains a valid, legal and workable Act. It is the duty of this court, in construing a legislative enactment, to give effect to the valid portions of the Act. See State v. Marsh, 37 Ark. 356; State v. Byles, 93 Ark. 612, 126 S.W. 94, 37 L.R.A., N.S. 774; Cotham v. Coffman, 111 Ark. 108,163 S.W. 1183; Mississippi Co. v. Green, 200 Ark. 204, 138 S.W.2d 377; Stanley v. Gates, 179 Ark. 886, 19 S.W.2d 1000. Other cases on this point are collected in West's Arkansas Digest, Statutes, 64. In Mississippi Co. v. Green, supra, this court found that 10 of Act 452 of 1917 (concerning the qualifications of judges of the county, probate and common pleas courts in Mississippi county) was unconstitutional. Yet, with that section stricken, this court held that the remainder of the Act was valid, legal and workable. I think the same rule should be applied in the case at bar. Other cases — involving courts and judicial officers, and in which this court has stricken the illegal provisions and enforced the remainder of the Act — are collected in West's Arkansas Digest, Statutes, 64(3).

Here is the way that Act 42 is valid, legal and workable, with 4 stricken, to-wit: the remaining sections of the Act create the Second Division of the First Chancery Circuit; provided that there shall be an additional chancellor; prescribe the duties of the chancellor and the oath of office to be taken; etc., etc. In the case of State ex rel. Wood v. Cotham, 116 Ark. 36, 172 S.W. 260, there was created a new judicial circuit. The question was as to the vacancy, and the method of filling it, and this court said:

"It is conceded by learned counsel on both sides that the creation of the new judicial circuit caused a vacancy to exist, within the meaning of the Constitution, in the office of judge of that circuit. This court has so decided. State ex rel. Smith v. Askew, 48 Ark. 82,2 S.W. 349.

"It will be noted that the Legislature authorized only a temporary filling of that vacancy by executive appointment, and left the succession to be supplied in conformity to existing laws without attempting to define or to reiterate them. The lawmakers could not have done otherwise, for the tenure of office and the method of filling a vacancy is unalterably fixed by the Constitution. Cobb v. Hammock, 82 Ark. 584, 102 S.W. 362; State ex rel. Attorney General v. Stevenson, 89 Ark. 31,116 S.W. 202."

So, here, it was unnecessary for the Legislature to say anything as to how the vacancy in the office should be filled. The vacancy existed immediately when the Act became a law; and the Constitution directed how the vacancy should be filled, i.e., by appointment of the governor. In the light of the last-cited case, Act 42 is certainly a valid, legal and workable Act, with all of 4 stricken. So, there should be a valid de jure court. Yet, the majority strikes down the entire Act because of 4.

My next point is, that with a valid legal, de jure court created, then Judge Ruth F. Hale, in presiding over that court, under commission, was certainly a de facto judge. In 46 C.J. 1057, in stating who is a de facto officer, this is given as the rule:

"One who holds an office under an appointment or election giving color of title may be a de facto officer, although the appointment or election is irregular, or invalid, or although he has been appointed by an authority not competent under the law to make the appointment, and even though his title is derived from an unconstitutional statute."

The records in the office of the Secretary of State (and we take judicial notice of these records) show that on February 8, 1947, a commission issued to Ruth F. Hale as chancellor of the Second Division of the First Chancery Circuit; and that she took the oath in legal form as "chancellor of the Second Division of the First Chancery Circuit of Pulaski county for the term ending January 1, 1949." The oath of office was filed the same day in the office of the Secretary of State, and the record there shows that she "qualified" on February 8, 1947. She certainly then became a de facto judge, and her situation is not one whit different from the situation of Judge Powell in the case of Keith v. State, 49 Ark. 439,5 S.W. 880. The majority differentiates the above case from the case at bar on grounds that do not appear to me to find support in the Keith case.

Here is the way I understand Keith v. State: Judge R. H. Powell, at the regular election in 1886, was elected judge of the Third Judicial Circuit. The Legislature, by Act of May 3, 1887, created the Fourteenth Judicial Circuit from some of the counties formerly in the Third and Fourth Judicial Circuits. The 1887 Act prescribed:

"Section 9. That the Circuit Judge elected at the last general election for the Third Circuit, whose residence falls within the Fourteenth, as created by this Act, shall continue to exercise the functions of Circuit Judge for the said Fourteenth Circuit until his successor is elected and qualified as now provided by law."

In other words, the 1887 Act created the Fourteenth Circuit, and designated the judge of that circuit by reference to his residence. (That is what Act 42 does, i.e., it creates the Second Division of the First Chancery Circuit, and designates the chancellor by reference to her former position.) In July, 1887, Judge Powell held court for the Fourteenth Circuit in Boone county (a county formerly in the Fourth Circuit, so Judge Powell could preside over that court only because of the 1887 Act). Keith was convicted of second degree murder; and he raised in the trial court the question that Judge Powell was not legally the judge of the Fourteenth Circuit, and therefore could not pronounce sentence on him.

Chief Justice COCKRILL, speaking for this court in the Keith case, said that Judge Powell was at least "the judge de facto of the circuit in which the appellant was convicted." Chief Justice COCKRILL further said:

"The principle that the acts of an officer de facto are binding upon the public as though done by one in office de jure, and that his right to the office cannot be questioned except in a direct proceeding to which he is a party, is well settled and is not new in this court. Moore, as Adm'r. v. Turner, 43 Ark. 243; Pearce v. Edington,38 Ark. 150; Kaufman v. Stone, 25 Ark. 336; Caldwell v. Bell Graham, 3 Ark. 419; S.C., 6 id., 227; Hildreth's Heirs v. McIntire's Devisees, 1 J. J. Marsh, 206, 19 Am. Dec., 61, and note."

Cases from Pennsylvania, Massachusetts, New York and other jurisdictions were reviewed, all supporting the holding that a person presiding over a court legally established was in fact a de facto judge. The holding in the case of Keith v. State was not based on the premise that Judge Powell had been elected to some office (as the majority seems to differentiate it here); because he had been elected to an office entirely distinct from the one which he was seeking to hold. The rule announced in Keith v. State is the rule generally. In 15 C.J. 874, this is given as the general rule:

"Where a court has been established by an Act of the legislature apparently valid, and has gone into operation under such Act, it is to be regarded as a court de facto, and where the organization of a court is authorized by law, a court organized thereunder is at least a de facto court, although it is defectively organized. . . . The legality of the existence of a de facto court and its right to exercise its functions cannot be inquired into collaterally, but only in a direct proceeding at the instance of the State. Neither can the question of the legal existence of a trial court be raised by appeal."

Without lengthening this dissent, it is my settled view that, with 4 of Act 42 stricken, the remaining sections leave a valid, legal and workable Act; and that Judge Ruth F. Hale is certainly a de facto judge, and, as such, her acts cannot be questioned in the type of case here presented.

For the reasons herein stated, I respectfully dissent from the holding of the majority, and I am authorized to state that Mr. Justice MILLWEE joins me in this dissent.

McHANEY, Justice, dissenting. On account of illness I "was absent and did not participate in the consideration or determination of the case," as noted in the majority opinion. I have participated in the consideration of this consolidated case on rehearing and I now desire to dissent from the holdings as expressed in the majority opinion.

I agree with everything that was said in the minority opinion and disagree on every point with the majority, except the holding that 4 of Act 42 is invalid. The holding of the majority that the appeals in the two cases, which were consolidated here for consideration, could be treated as petitions for certiorari and quashed as void judgments, is without authority to support it. The cases cited are not in point. Here, the title to the office is raised and determined, when the incumbent is not made a party and given a chance to defend her title. This cannot be done except in the case of an intruder or usurper without any color of right to the office. In Levy, Admr. v. Lychinski, 8 Ark. 113, this court said: "A writ of certiorari is not a proceeding against the tribunal or individual composing it; it acts upon the cause or proceedings in the inferior court, and removes it into a superior tribunal for reinvestigation. The jurisdiction so acquired is appellate and not original."

In 14 C.J.S., Certiorari, 28, it is said: "It appears to be the general rule that certiorari will not lie to try title to office, or where the determination of the right to office is the obvious and only object of the writ, and this is so even though the parties to the writ consent. In such cases quo warranto, to is the proper remedy."

So, it is my opinion that this court should not have considered and decided the title to the office in a divorce case which came here on appeal and in which the right of the incumbent to the office was not raised on the trial, but here for the first time, and the judge not being a party to the action in any way. The title to the office could only, be determined by quo warranto in a proceeding by the State at the instance of the Attorney General.

The majority also holds that the legislature would not have passed Act 42, without 4, the appointing section. It is said that 1, 2 and 3, the sections that created the Second Division of the Pulaski Chancery Court, "lead logically into 4. It is our view that the Act was intended as whole." What right the majority had to say, as it did in effect, that the legislature would not have enacted Act 42 without 4 in it, I am unable to determine. The legislature itself said it would. It said so in 12 by saying: "The invalidity of any section or sections of this Act shall not affect the validity of the balance of said Act." How can the majority say the legislature did not mean what it said? The appointment of Ruth Hale in 4 was incidental to the Act as a whole and the reason for the Act was stated in 13 to be: "The docket of the present Chancery Court of Pulaski county is so crowded that it is impossible for one chancellor to hear all the cases without undue delay in some of them, in view of the fact that said chancellor has to devote much of his time to the holding .of the Chancery Courts in the other three counties of said circuit: therefore, this Act is necessary for the immediate preservation of the public peace and safety and said Act shall take effect and be in force from and after its passage, and all laws and parts of laws in conflict herewith are hereby repealed."

Was the appointee a de facto judge? This question was discussed in the dissenting opinion. Of course, it was necessary for the majority to hold the whole of Act 42 to be void in order to arrive at the conclusion that the appointee was not a de facto judge, for once it is admitted that the Act did create the Second Division of said court, a power the legislature concededly had, it necessarily follows that the appointee, no matter how defective the appointment, is a de facto judge. In Vol. 43, Am.Jur. p. 224, 470, it is said: "The de facto doctrine was ingrafted upon the law as a matter of policy and necessity, to protect the interests of the public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. It was seen that it would be unreasonable to require the public to inquire on all occasions into the title of an officer, or compel him to show title, especially since the public has neither the time nor opportunity to investigate the title of the incumbent. The doctrine rests on the principle of protection to the interests of the public and third parties, not to protect or vindicate the acts or rights of the particular de facto officer or the claims or rights of rival claimants to the particular office. The law validates acts of de facto officers as to the public and third persons on the ground that, although not officers de jure, they are, in virtue of the particular circumstances, officers in fact whose acts public policy requires should be considered valid.

"Judicial as well as ministerial officers may be officers de facto, within the rule, hereafter considered, that the acts of a de facto officer are valid as to the public and third persons."

The majority have nullified hundreds of divorce decrees, decrees concerning property rights, alimony, support and custody of children. It has invalidated all subsequent marriages of divorced spouses and may have rendered them bigamous. Titles to real property have been clouded, and conveyances of homesteads subsequently by the husbands of such divorcees have been nullified where the wives did not join in such conveyances. It is impossible to predict all the disastrous results that will attend this holding. Yet all the parties to such litigation were perfectly innocent. These are the considerations that gave rise to the de facto doctrine. "The principle is founded," said the New York Court in Curtin v. Barton, 135 N.Y. 505, 34 N.E. 1093, "on considerations of public policy, and its maintenance is essential to the preservation of order, the security of private rights, and the due enforcement of the law. . . . The incumbent of the office is not a party to this action. His title to the office is not in question directly, as in the cases where an action in the nature of a quo warranto is brought by the attorney general, or where he brings the suit himself to recover the salary. When a court with competent jurisdiction is duly established, a suitor who resorts to it for the administration of justice and the protection of private rights should not be defeated or embarrassed by questions relating to the title of the judge, who presides in the court, to his office. If the court exists under the constitution and laws, and it had jurisdiction of the case, any defect in the election or mode of appointing the judge is not available to litigants."

Our own decisions, as well as those of all other courts, are to the same effect. In Keith v. State, 49 Ark. 439,5 S.W. 880, Chief Justice COCKRILL for the court quoted with approval from Clark v. Commonwealth, 29 Penn., St., 129, the following: "A very important question upon the constitutional power of the Legislature so as to alter judicial districts as to transfer a Judge to the courts of certain counties who was never voted for in those counties, was intended to be raised by this plea; but, unfortunately for the prisoner, it cannot be raised in this form. His plea admits that Judge Jordan (before whom the trial was had) `is a Judge de facto'; and if he did not admit this we would take judicial notice of the legislation which placed him in the courts of Montour county, so far as to hold him to be a judge de facto. That legislation is at least a colorable title to his office. Can the right and power of a judge de facto, with color of title, be questioned in any other form than by quo warranto, at the suit of the Commonwealth? Assuredly not." See, also, the additional quotations from the Keith case and other cases cited in the dissenting opinion by Mr. Justice McFADDIN.

So, here, the legislation, Act 42, constituted at least colorable title to the office held by the appointee and she was at least a de facto judge, and the right and power of a judge de facto, with color of title, cannot be questioned by a litigant in that court and can only be questioned by quo warranto. The appointee in quo warranto is made a defendant and is given the right to defend his title, a fundamental right that has not heretofore been denied a de facto officer. See Scott v. McCoy,212 Ark. 574, 206 S.W.2d 440.

Persons going into a regularly constituted court to settle private rights ought not to be required to inquire into the right of the presiding judge to hold the office at their peril. They have the right to assume that a judge of a court of competent jurisdiction is entitled to the office either de jure or de facto, and that its judgments and decrees are valid. Private litigation would never be determined if every litigant could question the right of the judge to be a judge.

The majority opinion as originally written does not refer to the case of State v. Green and Rock, 206 Ark. 361,175 S.W.2d 575, but it was mentioned in consultation on rehearing as being an authority to support the opinion. I do not think so. That is the case where the Governor, pursuant to Act 290 of 1943, appointed Walter N. Killough as temporary Circuit Judge, while his brother, Neill Killough, the regular Circuit Judge, was serving in the armed forces of the U.S. The court held 1 and 2 of said Act 290 unconstitutional and that the appointee was not a de jure judge. The concluding sentence of the opinion by the late Judge Knox reads: "We conclude that the judge granting the writ (Walter N. Killough) was not a judge de jure by virtue of his appointment under the authority of the Act, and this is the only question we are asked to decide." Mr. Justice FRANK G. SMITH and I dissented in that case, and the question of whether Walter N. Killough was a de facto judge was not raised or decided. That was a habeas corpus case where the judge granted the writ over the State's objections and the State appealed. This court treated the appeal as being in the nature of quo warranto, to try the title to the office. It was the State's action and not that of a private litigant so it cannot be any authority to sustain the present holding, where private litigants are permitted to question the title of office.

Realizing as I do, the serious and perhaps unsolvable predicament into which literally hundreds, if not thousands, of innocent litigants find themselves as a result of this decision, and believing that it is unsound and not at all necessary or proper to so hold, I most respectfully dissent. A rehearing should be granted. Justices McFADDIN and MILLWEE expressed their views in the dissent to the original opinion and they also concur in the views here expressed.