Bland v. Benton

• Decision Date: 04 October 1926
• Docket Number: (No. 155.)
• Citation: 286 S.W. 976
• Parties: BLAND v. BENTON.
• Court: Arkansas Supreme Court

286 S.W. 976

BLAND v. BENTON.

(No. 155.)

Supreme Court of Arkansas.

October 4, 1926.

Appeal from Circuit Court, Dallas County; Turner Butler, Judge.

Election contest by J. A. Bland against W. R. Benton. From a judgment of dismissal, plaintiff appeals. Affirmed.

George Brown and J. H. Davis, both of Rison, and R. W. Wilson, of Pine Bluff, for appellant.

T. D. Wynne, of Fordyce, for appellee.

WOOD, J.

This action was instituted by the appellant against the appellee on the 10th day of August, 1926. The appellant alleged, in substance, that he and the appellee were rival candidates for the nomination of sheriff and collector of Dallas county, Ark., on the Democratic ticket at the primary election held in that county on Tuesday, August 10, 1926; that upon the face of the returns made by the election officers the appellant received 959 votes and the appellee 1,250; that of this number 600 were illegal votes, which should be cast out and deducted from the vote received by the appellee; and that when this is done the appellant will have a majority of the legal votes cast. The appellant alleged that he filed a petition with the Democratic central committee on the 14th of August, asking the committee to cast out all illegal votes, which petition the committee refused, and accepted the vote as returned by the election officers, and thereupon certified the appellee as the nominee of the Democratic party for sheriff and collector of Dallas county.

The appellant alleged that at the various voting precincts where the primary election was held many persons were permitted to vote for the appellee and against the appellant who had not assessed a poll tax for the year 1925, and whose names were not included on the list of poll tax payers filed by the clerk of Dallas county on the second Monday of September, 1925, and whose names were not added to the assessment list for the year 1925. A list of these alleged illegal votes was attached to the complaint and marked Exhibit A. The complaint further alleged that the election officers permitted many persons to cast their votes for appellee and against the appellant whose names did not appear on the certified list of legal voters of Dallas county. The names of these alleged illegal voters were attached to the complaint and marked Exhibit B. The complaint alleged that the election officers permitted many persons to cast their ballots for the appellee and against the appellant who were nonresidents. A list of these alleged illegal voters was attached to the complaint, marked Exhibit C. The complaint further alleged that the election officers permitted persons to cast ballots for the appellee and against the appellant who were not qualified to vote. A list of these was attached to the complaint and marked Exhibit D. It was further alleged that the election officers permitted various persons to vote for the appellee and against the appellant who were Republicans, and not affiliated with the Democratic party. A list of these was attached to the complaint and marked Exhibit E.

The complaint alleged that, if all of these alleged illegal votes had not been cast or counted for the appellee and included in the returns of the election officers, the Democratic central committee would have issued the certificate of nomination to the appellant, instead of the appellee. The prayer of the complaint was in part as follows:

"That the court proceed at once to hear testimony as to fraudulent votes and ballots cast in said election at each and every precinct in said county, in so far as same were cast for either defendant or plaintiff for the nomination of the office of sheriff and collector, and that the court cast out all votes or ballots cast by persons who are not qualified to vote for any reason above set out and whose names are mentioned in any of the exhibits attached; that it then count the true and legal votes and find the number cast for the plaintiff and for the defendant for the nomination of sheriff and collector of Dallas county, and if it be found that the plaintiff has a majority over the defendant, W. R. Benton, for such nomination, the plaintiff then prays that this court make an order canceling the certificate of nomination issued to the defendant, W. R. Benton, and that an order be made declaring plaintiff the Democratic nominee for the office of sheriff and collector of Dallas county, and that he be so certified and his name so placed on the ticket to be voted on at the general election to be held in October, 1926."

The answer specifically denied all the allegations of the complaint as to the alleged illegal votes cast for the appellee. The appellee alleged that the Democratic central committee of Dallas county accepted the returns of election officers of the primary election held on August 10, 1926, and according to these returns certified the appellee as the nominee for the office of sheriff and collector of Dallas county, and concluded with a prayer asking that the appellant's petition be denied.

The judgment of the trial court recites, among other things, that the circuit court convened in special session on September 6 1926, pursuant to the order of the circuit judge in vacation; that the court heard the cause upon the complaint and the exhibits thereto, and the answer of the defendant and the exhibits thereto; that the court, upon convening in the forenoon of September 6, 1926, prescribed the manner and method of examining the election returns for ascertaining the illegal ballots cast in said election and for determining the true number of illegal votes cast for the parties as follows:

"The plaintiff shall select one person to act as clerk, whose duty it shall be to keep count of each ballot cast for the plaintiff and each ballot cast for the defendant, and shall select one other person, whose duty it shall be to examine each ballot and ascertain from inspection thereof for whom said ballot was cast and to declare the same. The defendant shall in like manner select two persons to act for him in the same manner as those selected by the plaintiff. When the number of illegal votes that have been cast in any box or voting precinct under examination shall have been ascertained, the clerk shall open the ballots of said precinct and deliver them to the representatives of the plaintiff and defendant as aforesaid, who shall, in open court and in the presence of the judge and the parties, examine each of the illegal ballots, and count said ballots for the party for whom said ballot was cast, and when all of the illegal ballots shall have been examined the number of such illegal ballots that were voted for the plaintiff shall be deducted from the total number of votes certified by the county central committee as cast for him, and the number of votes remaining shall be deemed to be the true number of legal votes cast for the plaintiff at said election. And in like manner, when all of the illegal ballots shall have been examined, the number of such illegal votes as were cast for the defendant shall be deducted from the total number of votes certified by the county central committee as cast for him, and the number of votes remaining shall be deemed to be the true number of legal votes cast for the defendant at said election; and that, after said illegal votes shall have been ascertained and deducted as aforesaid, then the person receiving the majority of the legal votes cast shall be deemed to be the nominee of the Democratic party for the office of sheriff and collector of said county."

Before prescribing the above-mentioned method for ascertaining the legal votes, the court declared the law to govern the representatives of the respective parties as above selected in determining who had received a majority of the legal votes cast. The court thereupon adjourned until September 7th, at 9 o'clock a. m., for the purpose of ascertaining who had received a majority of the legal votes cast according to the above-prescribed method. The court reconvened at 9 o'clock September 7, 1926, at which time the parties had not completed the list of votes to be counted and the court took a recess until 3 o'clock p. m. in order to give them further time. Upon the reconvening of the court in the afternoon, and immediately before the count of the ballots and their examination began, the appellant offered to file the following amendment to his complaint:

"Comes J. A. Bland and states that he is informed, has reason to believe, and therefore alleges that there were mistakes in addition of the votes, that many votes were miscalled, and mistakes in the tabulation of the votes as cast for the nomination of sheriff of Dallas county, and that said mistake in addition, in the miscalling of the votes, and in the tabulation of the votes was in favor of the defendant and against this plaintiff, and that a recount of the following boxes will show that he received more votes than were credited him, and that his opponent, W. R. Benton, received a far less number than were given him by the counting, calling, addition, and tabulation, and that a recount will change the result at said precincts. Plaintiff prays as in his original complaint for a count of the ballots, the true and legal ballots, after all illegal ballots have been cast out, as to all precincts, and now especially asks for a recount, readdition and retabulation of the votes as cast at box No. 1, Town of Fordyce, box or ward No. 2, Fordyce; precinct or box No. 3, town of Fordyce; Fordyce box, Fordyce township; Ivan precinct, Southhall township; Manchester township; Dalark precinct, Sisson precinct, Jackson township; and Eaglette precinct, Holly Springs township."

The court refused to allow the amendment to be filed, holding that:

"Said amendment was another and different cause of action to that stated in the complaint filed, which was the basis of this proceeding, and...