Bowden v. Webb

• Decision Date: 11 January 1915
• Docket Number: (No. 104.)
• Citation: 173 S.W. 181
• Parties: BOWDEN et al. v. WEBB et al.
• Court: Arkansas Supreme Court

173 S.W. 181

BOWDEN et al. v. WEBB et al.

(No. 104.)

Supreme Court of Arkansas.

January 11, 1915.

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

Election contest by H. H. Webb and others against J. H. Bowden and others. On contestants' application the court in vacation directed the production and filing of the poll books, etc., and contestees and election commissioners bring certiorari. Order quashed in part.

Jas. H. McCollum, T. C. Jobe, and O. A. Graves, all of Hope, for petitioners. L. F. Monroe, of Washington, Ark., Dan W. Jones, of Little Rock, and D. B. Sain, of Nashville, for respondents.

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 subpœna 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 subpœna 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, Ark., on the 15th day of August, 1914, upon the question of the removal of the county seat from Washington, Ark., to Hope, Ark., 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 appear and 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; Ex parte Jackson, 45 Ark. 158; Ex parte Helmert, 103 Ark. 571, 147 S. W. 1143.

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 persons voted for at such election and declared to...