Bowden v. Webb

• Decision Date: 11 January 1915
• Docket Number: 104
• Citation: 173 S.W. 181,116 Ark. 310
• Parties: BOWDEN v. WEBB
• Court: Arkansas Supreme Court

173 S.W. 181

116 Ark. 310

BOWDEN v. WEBB

No. 104

Supreme Court of Arkansas

January 11, 1915

Certiorari to Hempstead Circuit Court; R. G. Haynie, Judge judgment quashed.

Order quashed.

Jas. H McCollum, T. C. Jobe and O. A. Graves, for petitioners.

1. The circuit judge had no power or authority to make the order. Kirby's Dig., §§ 2832-3; 163 S.W. 1173; New Standard Dictionary, p. 2559. "Competent Tribunal" means a court of justice. 2 Words & Phrases, 1362; 2 Ark 229; 30 Id. 764; 38 Id. 213; 86 Id. 259; 103 Id. 571; 23 Cyc. 543-5; 26 U.S. (L. Ed.) 1111; 2 Words & Phrases, 1678; 23 Cyc. 543.

2. Neither judge nor court has the power to order the issuance of a subpoena duces tecum for the production of the books for inspection. Kirby's Digest, § 2838; 75 Ark. 455; 32 Id. 553; 49 Am. St. 557; 16 L.R.A. (N.S.) 1062; 40 Cyc. 2168; 128 Am. St. 749; 40 Cyc. 2170; 6 L.R.A. (N.S.) 325, note; 12 Id. 636; 31 L.R.A. (N.S.) 835; 15 Cyc. 429.

3. Should the order be carried out the integrity of the poll books would be destroyed and they would be useless as evidence. 50 Ark. 85; 11 Am. St. 787; 49 Id. 557; 16 L.R.A. (N.S.) 1062; McCrary on Elections, §§ 471-4, 480-1.

4. Before a subpoena duces tecum will be ordered for books, it must appear that they contain material evidence. 66 Ark. 229; 37 Am. Rep. 426; 128 Am. St. 749, note; 41 U.S. (L. Ed.) 87; 40 Cyc. 2169; 31 L.R.A. (N.S.) 835. As to whether or not the writ is really a subpoena d. t. see 16 L.R.A. (N.S.) 1062.

5. Certiorari is the proper remedy. 29 Ark. 173; 38 Id. 159; 39 Id. 126; Ib. 347; 61 Id. 605; 69 Id. 587; 73 Id. 604; 80 Id. 200; 103 Id. 571; 109 Id. 100; 50 L.R.A. 787; 7 Id. (N.S.) 512.

Etter & Monroe, Dan W. Jones and D. B. Sain, for respondents.

1. This application was made to the circuit judge in vacation under Kirby's Dig., §§ 3074 to 3078. The circuit judge in vacation has power to make the order. Kirby's Dig., §§ 2883, 3074 to 3078. The provisions of these statutes were fully complied with. See Kirby's Dig., § 1125, and 73 Ark. 270; Kirby's Dig. § 2838. The only competent evidence are the ballots and certificate showing how each elector voted. The production of the poll books does not interfere with the secrecy of the ballot or certificates.

2. The books, when produced, are under the control of the court, and the control of the election commissioners ceases. 75 Ark. 452.

3. The circuit court had jurisdiction over the contest by appeal, and had authority to make any necessary order for preserving the ballots and using them as evidence. 86 Ark. 272; Kirby's Dig., § 2838; 81 Ark. 543.

4. Nothing in section 2838, Kirby's Digest, is mentioned with reference to poll books, but only the ballots and certificates. There is no statute requiring poll books to be kept secret.

5. The petition for subpoena d. t. is specific as to the particular books desired.

MCCULLOCH, C. J. HART and KIRBY, JJ., concur.

OPINION

MCCULLOCH, C. J.

An election was held in Hempstead County on August 15, 1914, to decide the question of removal of the county seat from Washington to Hope; and the majority being, on the face of the returns as certified by the election commissioners, in favor of removal, a contest was instituted by those opposed to such removal. The county court decided against the contestants, and an appeal was taken to the circuit court, where the case is now pending, and stands for hearing at the next term of that court, to be held in April, 1915.

While the case was pending in the county court, an order was made by the court on the judges of election of the different townships requiring them to file with the clerk of the court the duplicate poll books kept by them pursuant to the election laws of the State, and that order was complied with except by the judges of election in nine of the voting precincts, who reported that the duplicates kept by them had been lost or destroyed and that the same could not be produced. After the appeal was taken the contestants made application to the circuit judge in vacation for a subpoena duces tecum, requiring the election commissioners of the county "to appear before the clerk of the circuit court on a day to be fixed * * * and to bring with them and to produce and file with the clerk of the Hempstead circuit court the poll books containing the names of the persons who voted at the election" in the townships specified where the judges had not complied with the order with respect to delivery of the duplicate poll books, and "also to testify on behalf of the contestants" in the proceedings pending in the circuit court. Notice was given of this application, and on hearing thereof the judge made an order in compliance with the petition, directing the clerk of the court to issue the subpoena duces tecum requiring the election commissioners to appear before the clerk on the 15th day of December, 1914, "and to bring with them and file with the clerk of the Hempstead circuit court in said cause on said day the poll books containing the names of the persons who voted at the election held in Hempstead County, Arkansas, on the 15th day of August, 1914, upon the question of the removal of the county seat from Washington, Arkansas, to Hope, Arkansas, and said poll books so filed by said election commissioners shall be safely kept by said clerk for the inspection of all parties to this suit and shall remain in his office until further orders." It will be seen from a comparison of the prayer of the petition and the order of the court, that the latter goes beyond the former in requiring the commissioners not only to produce the poll books, but that the same be filed and remain in the custody of the clerk until further orders of the court.

The commissioners, through their attorneys, have presented a petition to this court for a writ of certiorari to bring up the order of the circuit judge for review, and they challenge the jurisdiction of the judge to make such an order, particularly that part of it which changes the custody of the poll books from the election commissioners to the clerk of the court. The order of the circuit judge is to that extent a final one, which is subject to review, and as there is no provision for an appeal from an order of the circuit judge in vacation, the writ of certiorari is the appropriate method of bringing up the record for review. State ex rel. v. Neel, 48 Ark. 283, 3 S.W. 631; Jackson, Ex parte, 45 Ark. 158; Ex parte Helmert, 103 Ark. 571.

Returns of county seat elections are to be made to the county election commissioners, the same as required by the statute in general elections, and a contest of such an election must originate in the county court. Pitts v. Stuckert, 111 Ark. 388, 163 S.W. 1173.

The statutes governing elections provide that judges of election shall, after counting the ballots, prepare and sign in duplicate a certificate showing the number of votes given for each person, etc., and that "after making such certificate, the judges, before they disperse, shall put under cover one of said tally-sheets, certificates and poll-books and seal the same, and direct it to the board of county election commissioners." Kirby's Digest, § 2832. The election judges are further required to send up the ballots in a package separate from the certificates and poll-books. Section 2833. The duties of the election commissioners, with respect to the returns made to them, are prescribed in section 2838 as follows: "The county election commissioners shall retain the custody of and safely keep all ballots and certificates returned to them from the several precincts for a period of six months, after which time the same shall be destroyed, unless the commissioners shall be sooner notified in writing that the election of some person voted for at such election and declared to have been elected has been contested, or that criminal prosecution has been begun against any officer of election, or person voting thereat, for any fraud in said election, before a tribunal of competent jurisdiction, in which event, so many of said ballots and certificates as may relate to matters involved in said contest, or any prosecution, shall be preserved for use as evidence in such contest or prosecution. During the time such ballots may be retained, the package containing same shall not be opened by any one, unless directed to do so by some competent tribunal before which an election contest or prosecution is pending, in which such ballots are to be used as evidence."

It will be observed from reading the terms of the statute, that the ballots are to be kept in separate packages and not opened until ordered by a court of competent jurisdiction in a contest or a criminal prosecution, but that the package containing the certificates and poll-books are to be opened by the election commissioners for the purpose of casting up and certifying the total result of the election in the county. Thus the election commissioners are by statute made the custodians of the certificates, poll-books and ballots and the ballots are to be kept secret, but the poll-books and certificates are public records about which there is no secrecy, and which are subject to...