Petitioner, B. G. Davidson, was a member of the Arkansas State Police Force until July 22, 1971, when he was notified by the Director of the Police Services Division of the Department of Public Safety, Colonel William Miller, that he had been dismissed from the division on the grounds that he had violated Section 111.050 of the Arkansas State Police Manual.1 The letter advised that the dismissal was effective on that date, but that Davidson would remain on the payroll until he had received pay for vacation time which had accrued to him; further, “I wish you success in any endeavor in which you may engage”. Thereafter, Davidson, in accordance with the provisions of Ark. Stat. Ann. § 42-406 (d) (Repl. 1964), requested a hearing on the charges before the commission, which was granted, the chairman of the commission notifying Davidson on July 30, 1971 that the hearing would be conducted at 2:00 p.m. on Thursday, August 19, 1971, at State Police Headquarters in Little Rock. On August 18, 1971, Davidson filed a petition with the Chancery Court of Pulaski County in which he alleged that the commission had previously followed the practice of hearing appeals by a dismissed trooper in executive season, barring the public and the press from its hearings. Davidson alleged that a motion had been filed on August 11 with the commission wherein petitioner requested that the hearing be conducted as a public meeting, open to the press, and to all persons who might have an interest in the disposition of the case, that appellant responded:
“That the hearing to be held by the Commission on Thursday, August 19, 1971, is for the purpose of making a determination on a personnel matter. Matters concerning personnel may be considered by the Commission in Executive Session and a public meeting is not required. It is the position of the Division of Police Services that the matter of the reinstatement of B. G. Davidson is a personnel matter and that personnel matters can and should be heard and resolved in Executive Session by the Commission.”
This response was delivered to counsel for appellee in the Attorney General’s office.
Davidson asserted that the Arkansas State Police Commission would bar the press and public unless the commission was enjoined and restrained from doing so; that a closed hearing of the case would be in derogation of his civil rights and in derogation of the public interest; in paragraph 8 of his petition, Davidson stated:
“The petitioner expressly alleges that the refusal of the Commission to grant him a public, hearing is motivated by its desire to prevent him from properly presenting his case and obtaining a fair final adjudication thereof, in which matter the public has a vital interest and is further made to prevent the Arkansas State Police Department from being embarrassed about the decision made by Col. William C. filler and Mr. Hal Brueggeman in dismissing this petitioner without justification and apparently for political motives and the petitioner states that he is without means to have his case fairly adjudicated unless the public is permitted to attend his hearing and form its own impressions and evaluations of the procedures and deliberations of the Arkansas State Police Commission.”
It was pointed out that unless the court granted the restraining order, petitioner would have no opportunity for a public hearing, in that the witnesses would be heard in executive session, and any appeal from an adverse decision to the circuit court would be decided by that court entirely on the record prepared before the commission.2 Davidson prayed that the court issue a temporary injunction restraining the commission from barring the press and public from the hearing and that on final hearing the injunction be made permanent. The temporary injunction was granted, and subsequently, the commission responded to the petition by demurrer, asserting that petitioner had a complete and adequate remedy at law; that his petition amounted to a request for a writ of mandamus upon respondents and that the issuance of such writ was beyond the jurisdiction of the chancery court. The demurrer was overruled and the court proceeded to enter its injunction restraining and enjoining appellant from barring the public and news media from any hearing it may hold concerning the appeal of Davidson from his dismissal. From the decree so entered, appellant brings this appeal.
We agree with appellant that, in substance, this was a suit for mandamus, rather than a petition for injunctive relief. Let it be remembered that appellee asked for a hearing on his dismissal, and to this, he was clearly entitled under the statute; had the commission denied a hearing, Davidson would have been entitled to a writ of mandamus from the circuit court. Appellee is thus in the position of, on the one hand, asking for a hearing, and on the other hand, asking that the type of hearing offered be enjoined. In effect, this can mean but one thing, viz, that Davidson is demanding a particular type of hearing. The fact that the litigation is really a petition for mandamus can best be shown by a determination of whether Davidson, as the matter now stands, has obtained the entire relief sought. The answer is distinctly in the negative, for if appellee is to obtain the relief he desires (reinstatement), there must be a hearing — and he wants the hearing — but he desires that the commission be compelled to conduct it in a certain manner. To illistrate, suppose that the commission decides to let the matter stand “as is” i.e., hold no hearing (and it has never been ordered by any court to hold a hearing, only not to bar the press from any hearing held). Davidson’s only recourse would be to apply to the circuit court for mandamus, the chancery court having no authority to issue this writ.
That the proper remedy was mandamus is recognized by appellee himself for in Paragraph 9 of his petition to the chancery court, he stated:
“The petitioner states that due to the time element he cannot seek a mandamus against the Commission, which requires a notice of from two to seven days3 and that he will have his case heard at a closed hearing of the respondent Commission unless this court enjoins temporarily, and then permanently, the Commission from closing the hearing to the press and the public ***”
Subsequently, after the granting of the restraining order, a petition for mandamus was filed in the Pulaski County Circuit Court but that court, by letter of August 31, denied the petition for the writ, stating:
“In my studied opinion the petitioner is seeking by way of mandamus to establish a right to have any hearing conducted by the Arkansas State Police Commission to be open to the news media; that mandamus may be used to enforce a right only after same has been once established. The question of whether Mr. Davidson is entitled to have an open hearing is the subject matter of litigation in the Pulaski County Chancery Court. It is self-evident from the record in this case that the Police Commission stands ready to provide Mr. Davidson with the required hearing but the controversy exists between the parties as to what I shall term a ‘closed’ or ‘open’ door hearing. Since the jurisdiction of the Chancery Court was invoked the matter will have to be finally adjudicated by that Court before this Court could entertain petitioner’s plea for Writ of Mandamus.”
We held in Nethercutt v. Pulaski County Special School District, 248 Ark. 143, 450 S.W. 2d 777, that jurisdiction of writs of mandamus, being traditionally common law writs, is restricted to and vested solely in the circuit court. Since we have said that the present action is, in effect, an action for mandamus, it follows that the chancery court had no jurisdiction and should not have entered the order complained of. Rather, that court should have transferred the cause to the circuit court. In Rowe v. Allison, 87 Ark. 206, 112 S.W. 395, this court cited section 5991 of Kirby’s Digest, which is identical to Ark. Stat. Ann. § 27-208 (Repl. 1962), reading as follows:
“An error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings by an amendment in the pleadings and a transfer of the action to the proper docket.”
The court then went on to say:
“Had the defendants taken issue upon the allegations of the complaint, and not demurred to the complaint, nor moved to transfer, then, under the decisions in Cribbs v. Walker, 74 Ark. 104; Collins v. Paepcke-Leicht Lbr. Co., 74 Ark. 81; Ware v. White, 81 Ark. 220, the court would proceed to consider the case as if tried in the proper forum. But the defendants challenged the jurisdiction of the chancery court by demurring on the ground that the complaint did not show a cause of action. These demurrers should have been sustained and the complaint dismissed if it were not for the provisions of the Code above cited. Instead of assuming jurisdiction of the cause, the court should have transferred the action to the circuit court, when the demurrers developed that there was no cause of action in equity, if a couse of action was stated, [citing cases]”
This same holding has been reiterated on various occasions.
Summarizing, the circuit court was the only court which had the authority to grant the relief sought by Davidson, and this being true, the chancery court, when the demurrer was presented, should have transferred the action to the circuit court.
It is so ordered.
Fogleman, J., concurs. Byrd, J., dissents.“Section 111.050 — Court Costs A-No fee shall be allowed to any member of the Department for the arrest or transportation of persons arrested. No expert witness fees shall be allowed and no other fees granted except as provided by law.”
See Ark. Stat. Ann. § 42-406 (d) (Repl. 1964).
Ark. Stat. Ann. § 33-106 (Repl. 1962) provides that petitions for writs of mandamus and writs of prohibition shall be heard no earlier than two days and no longer than seven days, after the filing of the application for such a writ.