Harold ("Butch") Sargent v. H. G. Foster, Prosecuting Attorney

Harold ("Butch") SARGENT v. H. G. FOSTER,
Prosecuting Attorney

97-810                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 16, 1998


1.   Elections -- Faulkner case inapplicable - appellant's argument
     without merit. -- The case of Faulkner v. Woodward, 203 Ark.
     254, 156 S.W.2d 243 (1941), cited by appellant in support of
     his appeal from the dismissal of a petition for writ of
     mandamus to compel the prosecuting attorney to oust the
     sheriff from office, was inapplicable to the facts in this
     case; in Faulkner, the appellant filed suit against the
     appellee for usurpation of office and requested a judgment of
     ouster; the law that the appellee violated dealt only with an
     office seeker's eligibility to hold public office, and the
     supreme court held that because appellee's election was void,
     the appellant had the legal right to sue the appellant as a
     usurper; here, the law that appelee allegedly violated
     required a conviction before an action for usurpation could
     lie.

2.   Elections -- violation of election laws claimed -- appellant
     failed to plead sufficient facts to show that usurpation
     action may lie. -- Appellant claimed that the sheriff violated
     Ark. Code Ann.  7-5-211(b) (Repl. 1993) of the election laws
     and that this violation imposed a nondiscretionary duty on the
     prosecuting attorney to bring a usurpation action against the
     sheriff under Ark. Code Ann.  16-118-105 (1987); Ark. Code
     Ann.  7-1-103(28) to -103(29) and 7-1-104 (Repl. 1993)
     govern punishment for violating the election laws; appellant
     did not plead sufficient facts to show that a usurpation
     action might lie; both of these sections require a conviction,
     and appellant never claimed that the sheriff was convicted of
     a misdemeanor offense under the elections laws; because
     appellant did not allege facts that, by law, created a
     forfeiture of office, the issue of whether the prosecuting
     attorney has a nondiscretionary duty to bring a usurpation
     action was not reached.

3.   Mandamus, writ of -- discretionary remedy -- when issued. --
     Mandamus is an appropriate remedy when a public officer is
     called upon to do a plain and specific duty, which is required
     by law and which requires no exercise of discretion or
     official judgment; a writ of mandamus is a discretionary
     remedy that will be issued only when the petitioner has shown
     a clear and certain legal right to the relief sought and there
     is no other adequate remedy.

4.   Mandamus, writ of -- insufficient facts pleaded to show
     appellant had clear and legal right to relief -- petition for
     writ properly denied. -- Appellant petitioned the trial court
     to compel the prosecuting attorney to remove the sheriff from
     office; here, a conviction is necessary before a public-office
     holder can be ousted; because appellant did not plead
     sufficient facts to show that he had a clear and certain legal
     right to relief, the trial court did not err in denying his
     petition.


     Appeal from Van Buren Circuit Court; Charles E. Clawson, Jr.,
Judge; affirmed.
     Appellant, pro se.
     Winston Bryant, Att'y Gen., by:  Timothy Gauger, Asst. Att'y
Gen., for appellee.

     Ray Thornton, Justice.
     Appellant Harold ("Butch") Sargent, a citizen of Van Buren
County, appeals the dismissal of his writ of mandamus to compel H.
G. Foster, the Prosecuting Attorney, to oust Van Buren County
Sheriff Mike Bridges from office.  Mr. Sargent alleged that Sheriff
Bridges, a candidate for re‰lection, violated the election laws
when he transported election ballots from the printer, in Clinton,
to the Sheriff of Election for Union Precinct, Shirley, Arkansas. 
As a result, Mr. Sargent urges that the Prosecuting Attorney had a
nondiscretionary duty to oust Sheriff Bridges from office.  We find
no merit in Mr. Sargent's arguments, and affirm.
     In his petition for writ of mandamus, Mr. Sargent alleged that
on November 5, 1996, Sheriff Mike Bridges, a candidate for
re‰lection in a contested race for county sheriff, picked up voting
ballots for the general election from the printer and, about forty
minutes later, delivered the ballots to Glen Williams, Sheriff of
Election at Shirley City Hall.  Mr. Sargent further alleged that on
November 11, 1996, he filed a complaint with the Prosecuting
Attorney's Office and that Deputy Prosecutor Stephen James told Mr.
Sargent that he had heard about the incident and was not going to
pursue the matter.  Mr. Sargent also alleged that the Prosecuting
Attorney's Office did not take any action in the matter when he
filed a second complaint regarding Sheriff Bridges's conduct.
     Mr. Sargent attached two affidavits to his petition:  one from
Glen Williams, and one from Maurice Bonds Whillock, County and
Circuit Clerk and Ex-Officio Recorder.  In his affidavit, Mr.
Whillock stated that he received a telephone call from Glen
Williams, who was working at the Union Precinct in Shirley,
informing him that the precinct was running out or had run out of
ballots.  Mr. Whillock further stated that he then attempted to
call each of the Van Buren County Election Commissioners to notify
them of the problem, but that they were all unavailable.  Mr.
Whillock stated that he called the Van Buren County Sheriff's
Office to ask a deputy to pick up ballots at the print shop and
deliver them to Shirley.  Mr. Whillock stated that while he was on
the telephone with the County Sheriff's dispatcher, Sheriff Bridges
walked into his office and that he asked Bridges to pick up and
deliver the ballots.  In his affidavit, Mr. Williams affirmed his
telephone call to Mr. Whillock, and stated that Sheriff Bridges
personally delivered ballots into his hands.  Following a hearing
on Mr. Sargent's allegations, the trial court dismissed the
petition for writ of mandamus pursuant to Ark. R. Civ. P. 12(b)(6).
     Mr. Sargent claims that Sheriff Bridges violated Ark. Code
Ann.  7-5-211 (Repl. 1993) of the election laws.  That section
provides that the county board of election commissioners shall
deliver ballots and other election supplies to the sheriff. 
However, section 7-5-211(b) states the following exception:
     (b)  If the sheriff is a candidate for reelection in a
     contested race, it shall be the duty of the county board of
     election commissioners to appoint some suitable person or
     persons in each precinct to perform the duties of the sheriff. 
     The sheriff and his deputies are disqualified to discharge
     those duties in such case.
     Mr. Sargent contends that Sheriff Bridges violated the
elections laws when, as a candidate for re‰lection, he transported
ballots from the printer to Union Precinct.  Mr. Sargent further
contends that this violation imposed a nondiscretionary duty on the
Prosecuting Attorney to bring a usurpation action against Sheriff
Bridges under Ark. Code Ann.  16-118-105 (1987).  Section 16-118-
105 provides:
     (b)(2) A person who continues to exercise an office after
     having committed an act, or omitted to do an act, of which the
     commission or omission, by law, created a forfeiture of his
     office, shall be subject to be proceeded against for a
     usurpation thereof.  (Emphasis added).
     (b)(3)(A) It shall be the duty of the prosecuting attorney to
     institute the actions mentioned in this section against all
     persons who usurp county offices or franchises where there is
     no other person entitled thereto or the person entitled fails
     to institute the action for three (3) months after the
     usurpation.  
     To determine whether the Prosecuting Attorney has a duty to
prosecute, we must first consider whether Mr. Sargent has pleaded
facts showing that a usurpation action may lie against Sheriff
Bridges.  Whether the prosecutor's duty is discretionary or
nondiscretionary does not become an issue until we determine that
the pleaded facts show a usurpation action is appropriate.  
     The case Mr. Sargent cites in support of his position is not
applicable to the facts of this case.  See Faulkner v. Woodward,
203 Ark. 254, 156 S.W.2d 243 (1941).  In Faulkner, the appellant
filed suit against the appellee for usurpation of office and
requested a judgment of ouster.  We agreed with the appellant's
contention that the appellee was not eligible to fill the office of
justice of the peace when he acted as a judge of the election in
violation of Article 3, section 10 of the Arkansas Constitution. 
Article 3, section 10, the law in Faulkner that created the
forfeiture, reads as follows:  "Nor shall any election officer be
eligible to any civil office to be filled at election at which he
shall serve--save only to such subordinate municipal or local
offices, below the grade of city or county officers, as shall be
designated by general law."   
     Faulkner is distinguishable from the case before us.  In that
case, the law that the appellee violated dealt only with an office
seeker's eligibility to hold public office.  We said that because
appellee's election was void, the appellant had the legal right to
sue the appellant as a usurper.  Faulkner, 203 Ark. at 257-58, 156 S.W.2d  at 245 (quoting Pope's Digest  14326; C. & M.'s Digest 
10326).
     In the case before us, Ark. Code Ann.  7-1-103(28) to -
103(29) (misdemeanor offenses) and 7-1-104 (felony offenses) (Repl.
1993) govern punishment for violating the election laws.  Without
determining which section applies to the offense alleged here, we
conclude that Mr. Sargent has not pleaded sufficient facts to show
a usurpation action may lie.  Both of these sections require a
conviction.  In his pleadings, Mr. Sargent did not claim that
Sheriff Bridges was convicted of a misdemeanor offense under the
elections laws.  Because he has not alleged facts that, by law,
created a forfeiture of office, we do not reach the issue of
whether the Prosecuting Attorney has a nondiscretionary duty to
bring a usurpation action.
     Mr. Sargent petitioned the trial court to compel the
Prosecuting Attorney to remove Sheriff Bridges from office. 
Mandamus is an appropriate remedy when a public officer is called
upon to do a plain and specific duty, which is required by law and
which requires no exercise of discretion or official judgment. 
Saunders v. Neuse, 320 Ark. 547, 550, 898 S.W.2d 43, 45 (1995). 
However, a writ of mandamus is a discretionary remedy that will be
issued only when the petitioner has shown a clear and certain legal
right to the relief sought and there is no other adequate remedy. 
Id.  In this case, a conviction is necessary before a public-office
holder can be ousted.  Because Mr. Sargent has not pleaded
sufficient facts to show that he has a clear and certain legal
right to relief, the trial court did not err in denying his
petition.
     Affirmed.