dissenting. I respectfully dissent. The ultimate issue before this court is whether the Pulaski Chancery Court has authority or jurisdiction to interpose equity in matters relating to the procedures to be followed by the Secretary of State in publishing notice relating to the conduct of a political election, or, stated another way, can equity jurisdiction be interposed for the protection of rights which are merely political, and be invoked for the purpose of restraining the holding, directing or controlling the mode, or determining the rules of law concerning how an election shall be held. I disagree that the chancery court had jurisdiction over the election procedures in question, and would order its injunction dissolved.
Granted, the jurisdictional issue was not raised by the appellants or the appellee. However, the question of subject matter jurisdiction is always open and may be raised by the court, even if not raised by the parties. Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988). In fact, we not only have the right, but the duty to raise this issue. Arkansas State Employees Ins. Advisory Comm’n v. Estate of Manning, 316 Ark. 143, 870 S.W.2d 748 (1994).
In Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967), the Republican Party filed an action in chancery court seeking declaratory relief. The chancery court found unconstitutional Act 477 of 1963 which prohibited the majority party member of the county board of election commissioners from naming members of the majority party as election officials. The chancellor also found invalid Act 56, § 5 of the Extraordinary Session of 1965, which prohibited persons having voted in a party primary from being designated by an opposite party to serve in the next general election. And finally, the chancellor declared Act 57 of the same extra session, an act making it a felony to vote in more than one party primary on the same day, inapplicable to persons voting in a general election. This court refused to reach the merits of the issues decided by the chancery court, stating the following:
Wherever the established distinction between equitable and common law jurisdiction is observed, as it is in this State, courts of equity have no authority or jurisdiction to interpose for the protection of rights which are merely political, and where no civil or property right is involved. In all such cases, the remedy, if there is one, must be sought in a court of law. The extraordinary jurisdiction of courts of chancery can not, therefore, be invoked to protect the right of a citizen to vote or to be voted for at an election, or his right to be a candidate for or to be elected to any office. Nor can it be invoked for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held. These matters involve in themselves no property right, but pertain solely to the political administration of government.
242 Ark. at 285. (Emphasis added.)
In sum, the Catlett court held that a court of equity cannot invoke its jurisdiction for the purpose of restraining, directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held. In Catlett, we further stated that it is immaterial that the parties have not raised the issue of jurisdiction, for as we held in Sheffield v. Heslep, 206 Ark. 605, 177 S.W.2d 412 (1944), even though both sides to the litigation had asked this court to pass on the eligibilty of Heslep, nevertheless “we cannot do so in this equitable action, because there is no foundation for equitable jurisdiction.” The same rings true in this case, for here there is no foundation for equitable jurisdiction. See also White v. Holmes, 302 Ark. 545, 790 S.W.2d 902 (1990).
The Catlett decision makes it clear that the chancery court has no authority to decide election or political rights issues such as the ones presented in this case. Harris’s entire request for relief deals with the rules of law by which a constitutional issue is placed on a general election ballot. In seeking relief, he asked the chancery court to construe the laws governing election matters in a mandatory manner before the November 8, 1994 General Election was held so the proposed constitutional amendment would not be placed on the ballots or would not be counted or canvassed by the election officials. Obviously, the central focus of this case involves not only the direction and control of the mode of holding an election, but also affects the citizens’ rights to vote at that election. The chancery court clearly had no power to invoke its jurisdiction in such election matters or political rights issues.
When the jurisdictional problem was addressed during the oral arguments, two reasons emerged why we should not follow our traditional rule of keeping such election matters within the exclusive province of circuit court. The first concerns the provision of the Arkansas Civil Rights Act of 1993, which allows suits in equity. The second relates to our recent decision in the virtually identical case of Walmsley v. McCuen, 318 Ark. 269, 885 S.W.2d 10 (1994), wherein the issue of jurisdiction was not raised by the parties, and we likewise failed to examine the jurisdiction of the chancellor. In Walmsley, the chancellor declined to issue an injunction directed to Secretary of State McCuen, and, on appeal, we reversed the chancellor and remanded the case for entry of the injunction which was sought. In doing so, we were in error, as the chancery court did not have jurisdiction of the election issue. There is no legitimate reason for Walmsley to stand, as doing so would be to abort the longstanding exclusivity of circuit court in election cases.
In addition, the Arkansas Civil Rights Act does not establish jurisdiction in chancery court in this case. The Act, codified at Ark. Code Ann. §§ 16-123-101 to 109 (Supp. 1994), was invoked by Mr. Harris in his quest for injunctive relief. Section 16-123-103(a) provides that a governmental entity or person who, under color of law, deprives any person of rights, privileges and immunities secured by the Arkansas Constitution, shall be liable “in an action of law, a suit in equity, or other proper proceeding . . .” Indeed the Act provides for equity jurisdiction. However, the Act is not applicable in this case. A thorough reading of the Act, and, in particular, sections 16-123-104 and 105, shows that its purpose is to protect individuals or certain groups from harassment and from discrimination in employment, use of accommodations, property and credit transactions, and voting. The suit bought by Mr. Harris does not correspond with the purposes of the Act. Therefore, he should not be allowed to use the Act to invoke chancery jurisdiction.
Obviously, the problem presented by Walmsley is of considerable concern. As mentioned, the issue of jurisdiction was not addressed by the parties in that case, nor was it recognized in our opinion. In retrospect, the jurisdictional defect should have been discovered and resolved. Ideally, the court would catch every defect in subject matter jurisdiction, whether raised by the parties or not. But the reality is that the court, despite its best efforts, has not always done so. This is particularly true considering the short time frame in which Walmsley was decided, as the court was besieged by election matters requiring expedited resolution. See Ivy v. Republican Party, 318 Ark. 50, 883 S.W.2d 805 (1994); Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994); Walmsley v. McCuen, supra; Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994); Lewis v. West, 318 Ark. 334, 885 S.W.2d 663 (1994); Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994); Mertz v. States, 318 Ark. 390, 885 S.W.2d 853 (1994); Oliver v. Simons, 318 Ark. 402, 885 S.W.2d 859 (1994); Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994); and Wilson v. Cook, 318 Ark. 520, 886 S.W.2d 593 (1994).
Attorneys have been cautioned by this court not to infer that jurisdiction is proper when the jurisdictional issue is not part of the court’s ruling. See, e.g. Connor v. Blackwood, 176 Ark. 139, 2 S.W.2d 44 (1928). Whenever this court has had occasion to address the issue, the ruling has been unequivocal that chancery court simply has no jurisdiction in such election cases. We have also recognized that, rather than injunctive relief, mandamus is the proper remedy in such situations. State v. Craighead County Bd. of Elections Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989). Even though the relief issued in this case was termed an injunction, the request was in the nature of a mandamus, as it was directed to a state official engaged in his ministerial duties. We have steadfastly held that a court of equity cannot issue a mandamus. Arkansas State Police Comm’n v. Davis, 252 Ark. 137, 477 S.W.2d 852 (1972); State v. Craighead County Bd. of Election Comm’rs, supra; Covell v. Bailey, 296 Ark. 397, 757 S.W.2d 543 (1988); and Harber v. Rhodes, 248 Ark. 1188, 455 S.W.2d 926 (1970).
Whether the court has. without comment, allowed chancery jurisdiction to stand in certain cases in the past, the fact is that the jurisdictional defect should be recognized in this case. As we have said previously, we have not only the right, but the duty to raise this issue. Arkansas State Employees Ins. Advisory Comm’n v. Estate of Manning, supra. We cannot purposefully allow improper jurisdiction to be exercised, and our action and guidance now can serve to avoid such jurisdictional errors in the future.
In short, this court should conclude that equity is without jurisdiction, and dissolve the injunction issued by the chancellor, reverse her findings, and remand with directions that this matter be transferred to circuit court as issues still remain relating to counting and certifying the votes on the proposed amendment as well as canvassing of the vote by the Secretary of State.
Two wrongs do not make a right. We were wrong in accepting jurisdiction in Walmsley, supra. The majority now compounds our previous mistake by concluding that the Pulaski County Chancery Court had jurisdiction in this case.
I dissent.
Dudley and Glaze, JJ., join this dissent.