dissenting. I cannot agree that the determinative statute in this case may be ignored as having been raised for the first time on appeal. In considering whether this issue was before the trial court, we should not view the matter hypercritically. Litigation of this sort cannot be approached as deliberately as the usual lawsuit, either by litigants, attorneys, trial judges or appellate courts. By the nature of things, decisive action must be taken very rapidly.
The election at which petitioner desired to be a candidate is to be held on November 7. The chairman of the board of election commissioners gave petitioner a one-hour notice that the board was about to hold a meeting at 4:00 p.m. on September 29 on the question of his qualifications to be a candidate for delegate to the upcoming Arkansas Constitutional Convention of 1979, a question which was of no concern to that board, as I will presently demonstrate. It should have come as no surprise to anyone that petitioner’s time was committed to that hour and that he could not be present. Petitioner, however, moved to correct the omission and error of the board by commencing this proceeding under Ark. Stat. Ann. § 3-612 (Repl. 1976) on October 5, 1978, less than a week after the board’s action. The nature of the proceeding established by this statutory provision is itself indicative of the hurried process involved. The “litigation” is initiated by affidavit by the complaining party. Petitioner’s affidavit in the trial court included a statement that, in due course, and in due time, he had prepared and filed the necessary papers and paid the necessary fee to the Secretary of the State of Arkansas, in order to have his name placed on the ballot in District No. 15, and, in due course, received notice that he had met the requirements for having his name on the ballot. Petitioner concluded thus:
Since it is apparent that said Election Commission has acted erroneously, this Court, by and through its Order, should require the Sebastian County Election Commissioners to immediately correct their error and show cause why the same should not be done, and this Court should require them to print the name of Chas. R. Garner upon the Ballot as a Delegate for the Constitutional Convention; and Chas. R. Garner, being a duly qualified and acting elector, does hereby request same.
The response to petitioner’s affidavit was to the effect that petitioner was not qualified to be a candidate because he did not reside in District 15. The response of the board of election commissioners concluded thus:
The Commission found as a matter of law that residence for voting registration purposes and qualification to run for public office is one’s usual place of abode and in the case of a married man where he lives with his wife and family.
Wherefore, the Sebastian County Election Commission has determined that Charles R. Garner is not a resident of Legislative District No. 15 and is, therefore, not qualified to be a candidate for the Constitutional Convention from Legislative District No. 15, Position 1, and is prepared to present proof and argument on all of the factual and legal issues raised herein at the Court’s earliest convenience.
The issue as to the applicability of Act 3 of 1977 was raised by the pleadings.
Hearing was had on October 9. The trial court held that Garner’s residence for the purpose of the constitutional convention was at 11023 Hunter’s Point, which is in District 16, rather than District 15, and affirmed the action of the board in not placing Garner’s name on the ballot.
The record discloses that Garner was duly certified to the Sebastian County Election Commissioners by the Secretary of State as a candidate for delegate to the constitutional convention. This should have concluded the matter, insofar as the election commissioners were concerned and as far as the trial court was concerned. The only evidence presented at the board’s “hearing” was an affidavit (or opinion) of the prosecuting attorney. The board’s finding was based entirely on the opinion of this official. That opinion was based in substantial part upon Ark. Stat. Ann. § 3-615 (Repl. 1976), which has no application whatever. That section applies only to candidates for public office. Delegates to a constitutional convention do not hold public office. Harvey v. Ridgeway, 248 Ark. 35, 450 S.W. 2d 281.
The exchange between the circuit judge and the petitioner quoted in the majority opinion does not appear to me to demonstrate that the applicability of § 4 of Act 3 of 1977 was not an issue. As a matter of fact, it demonstrates to me that Garner did contend that the act controlled. The mere fact that Garner did not want further delay for research certainly does not detract from his previous statement as to the conclusive effect of the act. How could he have asserted reliance on this section of the statute more emphatically than to say, “Doesn’t it mean what it says?”? If the answer was in the affirmative, no research was necessary.
The first erroneous premise of the prosecuting attorney and the election commissioners is that appellant was a candidate for public office. This is simply not so. See Harvey v. Ridgeway, supra. Although the board relied heavily upon § 2 of Act 3 of 1977, it totally ignored other sections of the same act. It should have read further, for other sections of the act were controlling.
It is clear that the General Assembly intended that the selection of delegates be conducted, and the results determined, much the same as elections to the General Assembly before the adoption of Ark. Stat. Ann. § 3-615. The pertinent portions of Act 3 read:
Section 2. Representation. One hundred (100) delegates shall be elected from the same districts and on the same basis as members of the House of Representatives of the General Assembly. *** Candidates for office of delegate to the Constitutional Convention of 1979 shall be qualified electors of the district in which they are a candidate and shall possess the qualifications required by law for a member of the House of Representatives of the Arkansas General Assembly, *** Provided that neither the holding of an elective or appointive office under this State or a political subdivision thereof nor the fact that a person is a candidate for such office shall disqualify such person to run for and serve as delegate to the Constitutional Convention provided for herein. The Convention shall fill vacancies in delegate positions by appointment of a qualified person from the district in which the vacancy occurs.
Section 3. Nomination of delegates. Every person desiring to stand for election as a delegate shall file a nominating petition with the Secretary of State containing at least fifty (50) signatures of qualified electors of the district in which said person stands for election. In addition, a filing fee of Twenty-Five Dollars ($25.00) must be paid to the Secretary of State at the time said petitions are filed. A candidate must designate the position being sought at the time nominating petitions are filed with the Secretary of State *** Such petitions shall be filed with the Secretary of State no earlier than the third (3rd) Tuesday in August 1978, and no later than the first (1st) Tuesday in September 1978, and upon verification of the nominating petitions and receipt of the filing fee, the Secretary of State shall certify the names of all candidates and the position which each is seeking to the County Election Commissioners not later than September 28, 1978.
Section 4. Election of delegates. The County Election Commissioners shall include on the ballots of the General Election of 1978 the names of all candidates for delegate to the constitutional convention as certified by the Secretary of State. The candidate receiving a majority of the votes for a particular position in said General Election shall be declared elected as a delegate to the convention ***
Section 5. Conduct of the convention. The elected delegates shall assemble at the State Capitol Building, or at some other appropriate place designated by the Governor, at 10:00 a.m. on the second Monday in December next after their election for an organizational meeting of no longer than three (3) days duration. ***
Section 6. Secretary of State presides at organizational meeting. *** The convention shall elect its own officers and shall be the sole judge of the qualifications and election of its own membership. [Emphasis mine.]
That Ark. Stat. Ann. § 3-615 was a novelty in Arkansas was clear to the General Assembly when it was adopted. The emergency clause recognized that this was a drastic change in Arkansas law. In pertinent part, it reads:
It is hereby found and determined by the General Assembly that under the present laws of this State, a person may, under certain circumstances, become a candidate for a public office which such person is not qualified and eligible to hold even if such person were elected to the office; that it is essential to the proper administration of the election laws of this State that legislation be enacted immediately to prohibit inclusion on the ballot of the name of any person as a candidate for any public office, if such person would not be qualified and eligible to fill such office if elected, and that this Act is designed to correct this situation. ***
The legislature was right. Election officials had never had any authority to question the qualifications of a candidate who met filing requirements, because their duties were purely ministerial, even though this court recognized that there was an argument that it would be a vain and useless proceeding to permit one to be a candidate for an office which he could not fill if he were elected to it. Irby v. Barrett, 204 Ark. 682, 163 S.W. 2d 512. Language peculiarly appropriate to this case is to be found in Irby. We said:
If the chairman and secretary of the committee have the right to say that because of the decision of this court petitioner is ineligible to be a candidate for office, they may also say, in any case, that for some other reason a candidate is ineligible. For instance, it has been held by this court in many election contests that one must pay his poll tax; that he must do so after proper assessment in the time and manner required by law, and that otherwise he is not eligible even to vote, and unless he were a voter he could not hold office. So with other qualifications, such as residence. May this question be considered or decided by the chairman and secretary of the committee? It may be that such power can be conferred upon them by laws of this state or the rules of the party; but it is certain that this has not yet been done. If this can be done, and should be done, the door would be opened wide for corrupt and partisan action. It might be certified that a prospective candidate has sufficiently complied with the laws of the state and the rules of a political party to become a candidate, and, upon further consideration, that holding might be recalled; and this might be done before that action could be reviewed in a court of competent jurisdiction and reversed in time for the candidate to have his name placed on the ticket. It would afford small satisfaction if, after the ticket had been printed with the name of the candidate omitted, [to] have a holding by the court that the name should not have been omitted.
Irby was a candidate for the state senate. This court pointed out that the senate was the tribunal in which Irby’s qualifications would be determined, if he were elected, pointing out that Art. 5, § 11 of the Constitution of Arkansas provides that “Each house [of the General Assembly] shall appoint its own officers, and shall be the sole judge of the qualifications ... of its own members.” Obviously, the General Assembly borrowed from this constitutional language in wording § 4 of Act 3 of 1977. When this language is read in the light of the other language of the act I have italicized, the legislative intent that the matter of election and qualification of delegates be handled exactly as it had been prior to the adoption of § 3-615 is absolutely clear. Although party officials were involved in Irby, the same rules and principles have been applied with the same force and effect when the election commissioners are the election officials involved. See Carroll v. Schneider, 211 Ark. 538, 201 S.W. 2d 221. They should have the same impact here.
When the statutory language such as that italicized is used, the duties of the election commissioners were ministerial, not judicial, and they had no function to perform, other than to put Garner’s name on the ballot after it was certified by the Secretary of State. Carroll v. Schneider, supra. To the same effect, Higgins v. Barnhill, 218 Ark. 466, 236 S.W. 2d 1011; Cox v. Wentz, 231 Ark. 205, 329 S.W. 2d 413; Ridgeway v. Catlett, Chairman, 238 Ark. 323, 379 S.W. 2d 277.
As recently as 1964, this court followed Irby, refusing to overrule it, saying that it was sound. Ridgeway v. Catlett, Chairman, supra. In Ridgeway, we held that one who had met the requirements prescribed for placing his name on the ballot was entitled to a writ of mandamus to require the State Democratic Central Committee to place his name on the ballot, even if he was ineligible to hold the office.
The Sebastian County Board of Election Commissioners should not have inquired into Garner’s qualifications to serve as a delegate to the constitutional convention. Neither the circuit court nor this court should have done so. The matter was one for the constitutional convention only. It would be free to agree or disagree with the Sebastian County Board of Election Commissioners, the Circuit Court of Sebastian County, and even with this court, on the question of Garner’s eligibility.1 Irby v. Barrett, supra.
Although the wisdom of the action of the General Assembly, within the scope of its broad powers, is not a matter for judicial consideration, it may well be asked why the legislative branch, after making a drastic change in 1971, would make a change in 1977 which was applicable only to the constitutional convention provided for by its Act. 3. Constitutional conventions are peculiar to the American system and are an American institution. There is nothing else like them in our system of government, or perhaps any other. They are not a branch of government. They exercise no governmental powers. Harvey v. Ridgeway, supra; 16 Am. Jur. 2d 202, Constitutional Law, § 31. They are different and properly so. The position of delegate is derived from the power inherent in the people to alter, reform or abolish their government in such manner as they see fit. Pryor v. Lowe, 258 Ark. 188, 523 S.W. 2d 199; Harvey v. Ridgeway, supra. They are agents of the people for the purpose of acting in their stead in the exercise of their inherent, solemn power to propose alteration, reform or even abolition. Harvey v. Ridgeway, supra.
The legislature, in calling a constitutional convention, exercises powers in its role as the only agency through which an authorized consent of the ultimate sovereign, the whole people, the entire state, may lawfully be obtained. 16 Am. Jur. 2d 202, Constitutional Law, § 30. Having plenary power to call a convention, it has the power to provide for the election of delegates. 16 Am. Jur. 2d 202, Constitutional Law, § 30; 16 CJS 45, Constitutional Law, § 8. The manner in which the names of candidates for delegates to the convention shall be placed on the ballot is a matter controlled by applicable constitutional and statutory provisions. 16 CJS 45, Constitutional Law, § 8. Neither the Sebastian County Board of Election Commissioners nor the courts should invade the province of the General Assembly, or that of the constitutional convention, in matters pertaining to selection of delegates and determining their qualifications and eligibility.
I find the premises of the concurring opinion no more acceptable than those of the majority opinion. In the first place, the argument that the board of election commissioners had no authority to act in the matter was not, in my opinion, waived on appeal. Here again, the brief of appellant was filed on October 13, only four days after the hearing in the trial court. Appellant’s brief contains this argument:
Also, we should point out to the Court that Section 4 of Act No. 3 of the Extraordinary Sessions of 1977 provides that “the county election commissioners shall include on the ballots of the General Election of 1978 the names of the candidates for delegates to the Constitutional Convention as certified by the Secretary of State.” The Election Commission, in this case, has taken it upon themselves to “decertify” Petitioner after said Commission received its letter of certification from the Secretary of State.
This was sufficient argument, in my opinion, to raise the issue in a case such as this.
In the next place, I reiterate that a judicial decision in this case would not have been binding on the constitutional convention, so the board of election commissioners should have left the determination of the question to the convention.
I would have reversed the judgment with directions to the trial court to direct the board of election commissioners to put Garner’s name on the ballot.
I am authorized to state that Mr. Justice Byrd joins in this opinion.The word “qualifications” includes eligibility. State, Ex rel., Evans v. Wheatley, 197 Ark. 997, 125 S.W. 2d 101.