This case is a sequel to Ellis v. Rockefeller, 215 Ark. 53 (Sept. 3, 1968). We treat the petition herein as one for declaratory judgment. At the trial level, petitioners (appellants) produced evidence tending to show that the State Board of Election Commissioners appointed to the County Boards of Election Commissioners in Prairie, Faulkner, and Conway Counties, men who have lately been active and loyal Democrats on the county level. At the close of petitioners’ evidence the respondents moved for, and were granted, a dismissal on the ground that the evidence did not show that the appointees could not be representative of the majority (Republican) party. The motion was granted and petitioners appealed.
If the appointees are presently loyal Democrats on the county level, then their appointment to the County Board of Election Commissioners as the third member would not comport with the expressed spirit of our holding in Ellis v. Rockefeller. There we stated in effect that, although the appointed member need not be a Republican, he should be one that would represent that party in the selection of judges and clerks, a person who would act on behalf of, and work with, the majority (Republican) party in selecting election officials.
Petitioners having made a prima facie case of ineligibility of the appointees, the trial court should have denied respondents’ motion to dismiss and proceeded to take proof to ascertain whether the appointees are still loyal members of the Democrat Party on the county level.
Reversed and remanded.
Harris, J., concurs.
Fogleman and Byrd, JJ., dissent; Justice Fogleman’s written dissent to be filed later,
*524Carleton Harris, Chief Justice. I am still of the view set out in my dissent in Ellis, et al v. Rockefeller, et al, 245 Ark. 53, i.e., that the third member of the several county boards of election commissioners should be one who is supporting the majority party, whatever his party status. Since the evidence in Case No. 5-4834 clearly indicates that the third party members named are not supporters of the majority party, I agree that this case should be reversed.
As far as Case No. 5-4835 is concerned, having already expressed myself to the effect that the majority party was entitled to two representatives on the county election boards (the county Republican chairman and the third member, a supporter), this enabling them to choose two judges and one clerk in each voting precinct, it necessarily follows that I would certainly agree that the Republican members of the various county boards of election commissioners are entitled, under the circumstances mentioned in the majority opinion, to name one judge and clerk.
I therefore concur.