Baker v. Hedrick, 5-785

• Decision Date: 09 January 1956
• Docket Number: No. 5-785,5-785
• Citation: 225 Ark. 778,285 S.W.2d 910
• Parties: C. E. BAKER, et al., Appellants, v. Kim HEDRICK, et al., Appellees.
• Court: Arkansas Supreme Court

Page 910

285 S.W.2d 910

225 Ark. 778

C. E. BAKER, et al., Appellants, v. Kim HEDRICK, et al., Appellees.

No. 5-785.

Supreme Court of Arkansas.

Jan. 9, 1956.

Rehearing Denied Feb. 6, 1956.

John F. Gibson, Dermott, for appellant.

Clifton Bond, Monticello, for appellee.

McFADDIN, Justice.

We have before us on this appeal the validity of a local option election. Pursuant to Initiated Act No. 1 of 1942, § 48-801 et seq., Ark.Stats., ¹ a local option election was held in Bradley County on August 7, 1954. The Board of Election Commissioners duly certified the result of the election to be:

2001 votes against the sale or manufacture of intoxicating liquors;

1673 votes for the sale or manufacture of intoxicating liquors.

In other words, on the face of the returns, the 'Drys' (appellees here) won the election by 328 votes. In due time the 'Wets' (appellants here) filed a contest proceeding in the County Court which decided in favor of the contestees; and the contestants appealed to the Circuit Court. There, after an extended trial, the Court found that the contestees won the election by the aforesaid vote of 2001 to 1673. The contestants bring this appeal; and in effect present here one issue--that is, that the conduct and methods employed by the contestees before and during the election constituted such fraud, intimidation and coercion as to void the entire election.

Usually in an election contest the contestant challenges certain designated ballots or the returns from certain designated voting places; but the present election contest is not of that kind. Here, there is no attack on any specified ballots: rather the attack is on the entire election. This is the language of the contestants' petition:

'Come the undersigned contestants, * * * and for their contest of the local option election held in Bradley County, Arkansas, on August 7, 1954, under provisions of Initiated Act No. 1 of 1942, allege:

'1. That prior to and during the conduct of said election, there was such manifestation of intimidation exerted by the Bradley County Drys that many voters were actually prevented from voting as desired to such an extent that the results of the election do not reflect a true sentiment of the electors. That by reason of the intimidation exerted by the Bradley County Drys, the true result of the election cannot be ascertained with certainty.

'2. That fraud, intimidation, or coercion of voters in a system of illegal voting was permitted to such an extent that the result of the election would have been different if such practices had not been engaged in by the Bradley County Drys and certain election officials.'

To support the foregoing allegations, the contestants, in Paragraphs 3 to 11 of their petition, alleged specific acts claimed to have been fraud, irregularities or intimidation committed by contestees or their leaders. The record here is voluminous, being approximately 700 pages of pleadings and testimony besides separate exhibits. At the conclusion of the trial, the Circuit Judge delivered his opinion. He named in order nearly every one of the more than forty witnesses who testified; discussed the extent and effect of the testimony of each such witness; and then discussed the combined effect of the testimony offered by each side. From all of the evidence the Circuit Judge found and declared that, even though there had been irregularities and illegalities (definitely named by him) in the election, nevertheless these were not sufficient to void the entire election. From a judgment rendered in accordance with that opinion and dismissing the contest, the contestants bring this appeal.

At the outset we mention that the findings of the Circuit Judge in an election contest have the force and effect that a jury verdict has in the ordinary circuit court case. Williams v. Buchanan, 86 Ark. 259, 110 S.W. 1024; Schuman v. Sanderson, 73 Ark. 187, 83 S.W. 940; Logan v. Moody, 219 Ark. 697, 244 S.W.2d 499; and Phillips v. Melton, 222 Ark. 162, 257 S.W.2d 931.

The appellants claim that the case at bar is ruled by the case of Patton v. Coates, 41 Ark. 111. That was a landmark case. ² There, in the days immediately following the Reconstruction, an election was held for County Judge of Pulaski County, and the then recently enfranchised Negro voters attempted to see that every Negro voted for the same candidate: to insure the entire absence of opposition votes, armed bands paraded before some of the election places; various acts of force and intimidation are discussed in the opinion. The result was, that this Court reversed a finding, that there had been a valid election, and remanded the case for further proceedings. Mr. Justice Eakin, the author of that opinion, gave this test as to when an election should be set aside:

'The wrong should appear to have been clear and flagrant; and in its nature, diffusive in its influences; calculated to effect more than can be traced; and sufficiently potent to render the result really uncertain. If it be such, it defeats a free election, * * *. If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected.'

The appellant quotes the above as the test by which to judge this local option election in Bradley County held August 7, 1954; and for the purposes of this appeal, we accept the quotation as the standard by which to test this case, in order to see if the findings of the Circuit Court are without substantial evidence to sustain them.

Here we have these five as the principal irregularities or illegalities in this case:

(1) Letters were sent by the contestees to men in the Armed Services saying that if the recipient had voted 'wet' in an absentee ballot and desired to change the ballot, the recipient could request a new ballot and vote again. Of course, such statement as to second voting, was entirely erroneous and in violation of § 3-1509, Ark.Stats. Within a very few days after mailing the said letters, the contestees learned of the illegality that had been proposed, and promptly dispatched a second letter to each recipient correcting the first one. There is absolutely no showing that the first letters resulted in any illegal voting. Their sending was unwarranted, unwise and illegal: but there is no showing that they resulted in a single duplicate ballot being cast in the election.

(2) The contestees heard that the contestants were trying to get the Negro voters to vote 'wet' in the absentee box and then vote 'wet' again in person at the August 7th election; and so the contestees sent mimeographed letters to about 1100 Negro voters urging them to vote 'dry' at all times, and enclosing a circular which stated that it was a fine of $100 to vote more than once in the same election. A portion of § 3-1121, Ark.Stats. was copied in the circular. It is claimed that this '$100 fine circular' was intimidation. The mimeographed letter (contestees' Exhibit No. 4) is in the most polite language, contains no threats or suggestions of intimidation, and explains that the circular is not a threat but a mere statement of a portion of the law. There were five witnesses who testified that they decided not to vote after seeing this circular because it 'scared them'. Let us assume that the circular, worded as it was, should not have been sent; nevertheless there is no proof that it affected more than five voters. Certainly such evidence is not sufficient to void an entire election.

(3) There is testimony that two ardent 'drys' met with Negro voters individually and collectively and urged them to vote 'dry'. These meetings and conferences were not illegal: open and...