Sailor v. Rankin | Cases | Westlaw

This is an appeal from the judgment of the circuit court of Perry county in a proceeding instituted to contest the result of an election held for the purpose of voting on the proposed removal of the county seat of that county from Perryville. There were two towns to which a removal was proposed. Perry and Bigelow, and each of those places received a very substantial number of votes. The county election commissioners rejected the returns from four precincts, and omitted them from their return to the county court. On the hearing of this contest in the circuit court on appeal from the county court, it was conceded by both sides to the contest that the elections held in those four townships, and two others, were void, and that the returns from the six townships should be entirely excluded, which the circuit court accordingly did.

The face of the returns, with those six townships excluded, showed the following result: Total vote 1,869; for removal 1,264; against removal 594; for Bigelow 1,175; for Perry 635. The clerk's certified list of persons who had paid poll tax for the preceding year showed a total of 2,004 qualified electors. It thus appeared from the face of the returns that a majority of the votes cast at the election, and also a majority of the total vote according to the number of poll taxes paid, was in favor of the proposal to remove the county seat and to establish the same at the town of Bigelow. Certain citizens thereupon instituted a contest in the county court on hehalf of the town of Perry over the question of removal to Bigelow, and subsequently the appellees instituted a like proceeding on behalf of the town of Perryville contesting the vote on said removal and the vote in favor of Bigelow.

Appellants filed their response on behalf of the town of Bigelow, and also a counter contest asking for the exclusion of the returns from the six townships already referred to. Each of the contests was based on alleged irregularities and frauds in four townships, constituting separate voting precincts, viz., Casa, Roland, Houston, and Perry; the last–named township being the one in which the town of Bigelow is situated.

When the case was called for trial in the circuit court, the contestants on behalf of the town of Perry withdrew their contest, and the cause proceeded to trial upon the contest of appellees on behalf of the town of Perryville. The court sustained the returns as made by the election officers in Houston and Perry townships, but excluded the vote from the other two townships, holding that the charges of fraud had been sustained. The circuit court decided, however, that the contestees had established the validity of 30 votes cast in Roland township in favor of removal and in favor of Bigelow, and also had established the validity of 13 votes in *359 Casa township. It was therefore adjudged that the proposal to remove the county seat from Perryville and the vote in favor of Bigelow did not constitute a majority of the electors, and that both propositions had been lost. The contestees thereupon prosecuted the appeal to this court.

It is only necessary for us to review the decision of the court with respect to the election in Casa and Roland townships; for in all other respects the decisions of the trial court were in favor of appellants.

It is contended, in the first place, that neither the pleadings nor the testimony warranted the judgment of the court excluding the returns from Casa and Roland townships. It is argued that the petitions for contest only attack the validity of specifically mentioned ballots in those two townships, and did not question the integrity of the returns as a whole. We find, however, on examination of the petition, that it is charged therein that the judges “committed such fraud and misconduct in the holding of said election in each of said precincts as to render the election therein void,” and that the fraud and misconduct consisted of permitting a large number of persons to vote who were not qualified electors, some of whom did not reside in the precinct or county, that the election officers in said township electioneered with voters in the polling places, and that they fraudulently registered as voting certain persons who did not appear at all at the polls, and that they fraudulently changed the ballots of voters who cast their ballots against removal so as to show that the same had been cast in favor of removal.

While the rule is that pleadings in a special statutory proceeding of this kind should be construed with some strictness, that does not mean that there should be such a technical construction of the pleadings as would defeat the obvious meaning and intention of the pleader. It was obviously the intention of the contestants to attack the validity of the whole return in each of the four townships mentioned, and it would be a very narrow interpretation of the language used in the petition to say that it was only intended to exclude certain votes. This intention is very plain when considered in connection with the fact that substantially all of the votes in those four townships were in favor of removal and in favor of the town of Bigelow, and the effort of contestants was to show fraud of a general nature which would destroy the integrity of the returns of the election officers.

The proof with respect to Roland township *360 tends to show that out of the total poll of 110 votes there appeared 34 names of persons who had not paid their poll taxes in the county; that the election officers placed in the box ballots purporting to be those of 5 persons who did not appear at all at the polling place; the officers concede that this is true as to 2 of the ballots; that 2 other persons were permitted to vote who were not qualified electors, and who so informed the election officers at the time, but that the officers insisted that they go ahead and vote. This testimony, if given full credence, was legally sufficient to warrant a finding that the entire returns from the township should be rejected as being unworthy of credit.

It is contended finally that upon the findings of fact made by the court, even with the exclusion of the two townships, a majority of the votes were in favor of removal from Perryville and in favor of Bigelow, and that the judgment should have been against the contestants. After careful consideration of the findings of the court, we are of the opinion that this contention is sound with respect to the vote for removal from Perryville, but that the contention cannot be sustained as to the finding in respect to the vote in favor of Bigelow.

The statute now in force provides that:

The validity of a somewhat similar statute, prescribing, however, a different test, was upheld by this court, as being not in conflict with the Constitution, in the case of Vance v. Austell, 45 Ark. 400, where the court held that the statute and the Constitution, when construed together, created a double test requiring that the vote in favor of removal shall constitute a majority of those actually voting at the election, and also of the list prescribed by the statute. Now, the proof shows in the present case that there were 2,004 poll taxes paid in the county, a majority of which would be 1,003. The total vote actually cast was, according to the findings of the trial court, less than the number on the certified list of paid poll taxes. That is to say, taking the returns of the townships, exclusive of the 6 that were thrown out, and then deducting the total vote from Casa and Roland townships, and adding the 43 legal votes shown to have been cast in those townships, makes a total of 1,657 votes cast at the election. The total vote being less than the number of certified poll taxes, the latter controls. Therefore we must accept that as the proper test of determining the number of votes necessary to constitute a majority. There were returned in favor of Bigelow 1,175 votes, including Casa and Roland townships, and after deducting the total number (240) cast in favor of Bigelow in those townships, and adding the 43 votes found by the court to have been legally cast in those two townships in favor of Bigelow, it makes the total in favor of Bigelow 978, which is 25 votes less than is necessary to constitute a majority according to the certified list of poll taxes paid in the county.

The state of the case is different, however, with respect to the vote on the question of removal from Perryville. There were 1,264 votes returned in favor of the removal proposition, exclusive of the six townships which were rejected from the returns. Out of this number a total of 239 were in favor of the removal in Casa and Roland townships, and, after deducting this number from the total and adding the 43 votes found by the court to have been legally cast in favor of the proposition, it leaves a total of 1,068 votes in favor of removal, which constitutes a majority of the voters who paid poll taxes and of the votes actually cast at the election. We are of the opinion, therefore, that the court erred in its judgment declaring that the vote in favor of removal had failed to carry. The statute provides that:

The judgment of the circuit court is therefore affirmed in so far as it declares that a majority did not vote in favor of either of the two places proposed for removal, but the judgment declaring that the proposed removal from Perryville failed to carry is reversed, and the cause remanded, with directions to the circuit court to enter a judgment in accordance with the statute, ordering a new election to determine the location of the county seat as between Perryville, the old county seat, and Bigelow, the other candidate.