Brown v. Anderson

• Decision Date: 23 December 1946
• Docket Number: No. 4-8129.,4-8129.
• Citation: 198 S.W.2d 188
• Parties: BROWN et al. v. ANDERSON et al.
• Court: Arkansas Supreme Court

Page 188

198 S.W.2d 188

BROWN et al. v. ANDERSON et al.

No. 4-8129.

Supreme Court of Arkansas.

December 23, 1946.

Appeal from Circuit Court, Garland County; Lawrence C. Auten, Special Judge.

Election contest by I. G. Brown against Marion Anderson and another, and by Q. Bynum Hurst against Elza T. Housley and another, and by Leonard R. Ellis against John E. Jones and another, and by Clyde H. Brown against Earl Witt and another. From judgments of dismissal, the contestants appeal. The cases were consolidated in the Supreme Court.

Judgments reversed and causes remanded.

Sidney S. McMath, Nathan L. Schoenfeld, David B. Whittington, and C. Floyd Huff, Jr., all of Hot Springs, for appellants.

Jay Rowland, Curtis L. Ridgway, Lloyd E. Darnell, Fred Johnson, and James R. Campbell, all of Hot Springs, for appellees.

McFADDIN, Justice.

This appeal involves four election contests stemming from the Democratic Primary election held in Garland County on July 30, 1946. In Case No. 6991 in the Circuit Court, I. G. Brown was contestant, and Marion Anderson and Charles Dugan were contestees. Each of these three parties was a candidate for the Democratic nomination for Sheriff of Garland County; and, as a result of the July 30th election, the County Democratic Central Committee on August 2, 1946, certified Anderson to be the nominee, as having received a clear majority of all votes. On August 12th, Brown filed this contest, alleging illegal votes and other irregularities and claiming, inter alia, that Brown received the nomination. It is not necessary to detail any of the allegations, as the case was not tried on these allegations. With the complaint, there was filed the affidavit signed and sworn to by ten or more Democratic electors before Frank Carpenter, as a notary public. The qualification of the notary public is one of the issues here.

In case No. 6992 in the Circuit Court, Q. Bynum Hurst was contestant, and Elza T. Housley and Barney H. Roark were contestees; and there was involved the Democratic nomination for County Judge of Garland County. In case No. 6993 in the Circuit Court, Leonard R. Ellis was contestant, and John E. Jones and Billy I. Dale were contestees; and there was involved the Democratic nomination for Circuit and Chancery Clerk of Garland County. In case No. 6990 in the Circuit Court, Clyde H. Brown was contestant, and Earl Witt and Morris Hecht were contestees; and there was involved the Democratic nomination for Circuit Judge of the 18th Judicial District of Arkansas.

In each of the four cases there was the affidavit signed and sworn to by ten or more Democratic electors before Frank H. Carpenter as notary public. In each case, the contestees filed motion to dismiss the contest; and, in each case, the trial court— after hearing evidence—sustained the motion to dismiss on the sole ground that "the notary public was not qualified to administer an oath, being neither a de jure nor a de facto notary public." From the said orders of dismissal, the four contestants have prosecuted appeal; and all four of the circuit court cases are consolidated in one case in this court, since the issues in each case are identical. We will now refer to the contestants as appellants, and the contestees as appellees.

During the pendency of the appeal there occurred the general election on November 5, 1946, wherein appellees Anderson, Housley, Jones and Witt were shown as the Democratic nominees for the offices of Sheriff, County Judge, Circuit Clerk and Circuit Judge, respectively; and wherein the appellants were their respective opponents. The general election resulted in a victory for the appellants in each instance; and, as a result thereof, the appellees have filed a motion in this court to dismiss the appeal as moot. There are thus presented two questions: (1) Is the appeal moot?; and (2) was the notary public qualified to act. We dispose of these questions in the order listed.

I. Is the Appeal Moot? The appellees say: That, since each of the appellants won in the general election the same office for which he seeks the Democratic nomination in the case at bar, therefore the question of who was entitled to the Democratic nomination has become of no importance. In Pearson v. Quinn, 113 Ark. 24, 166 S.W. 746, 747, we quoted this sentence from a North Carolina case:

"The court will not go through the record merely to decide who would have won if the cause of action had not died pending appeal; that it will not decide the merits of a controversy which no longer exists merely to determine who shall pay the costs."

The quoted statement emphasizes the application of the term "moot" in the case at bar. Has the cause of action of each appellant ceased to exist by virtue of the result of the general election, in which each appellant was successful? Our own case of Cain v. CarlLee, 171 Ark. 155, 283 S.W. 365, 367, is full authority for our negative answer to this question. Obtaining the office in the general election is one thing; but obtaining the Democratic nomination in the primary is quite another thing. Cain and CarlLee were rival candidates for the Democratic nomination for County Judge of Woodruff County in the primary election of 1924. CarlLee was certified as the nominee, and Cain filed a contest. The case, in one phase or another, appears four times in the reports of this court. See 168 Ark. 64, 269 S.W. 57; 169 Ark. 887, 277 S.W. 551; 171 Ark. 155, 283 S.W. 365, and 171 Ark. 334, 284 S.W. 40. After the second opinion of this court, and while a third appeal was pending, CarlLee resigned the office of County Judge, and then moved this court to abate the cause as moot. But we held that Cain's right to be declared the Democratic nominee, if he honestly won the primary election, was a right that could not be taken from him. We pointed out that, under the Arkansas election laws, Cain had a "right of Action" to contest CarlLee's Democratic nomination; and we said of Cain's right:

"He was entitled to prosecute this cause of action so long as CarlLee resisted, or until there had been a final decision determining the case against him."

It is true that there was a dissenting opinion in the case; but we still adhere to the holding of the majority. That case was decided in 1926. Eight regular sessions of the General Assembly have intervened from then until now. No law has been enacted seeking to change the rule there announced, which was to the effect that the right to prosecute a contest for the Democratic nomination was a cause of action. We do not change that rule now.

To see that the Democratic nomination is a valuable privilege, we have only to read the case of Terry v. Harris, 188 Ark. 173, 64 S.W.2d 324. There, certain persons were allowed to be interrogated as to whether they had supported the Democratic nominees in the most recent state election. Likewise, in the case of Trussell v. Fish, 202 Ark. 956, 154 S.W.2d 587, there was detailed how a lack of party loyalty was urged against electors. So, in the case at bar: in the general election of 1948 some of these appellants might be questioned as to their party loyalty, if appellees are left to be the Democratic nominees, since appellants opposed them in the 1946 general election. In Arkansas the right to the Democratic party nomination is a valuable thing; and even if appellants won in the general election, still they have the continuing right to a trial to determine whether they were entitled to the Democratic nomination; and this to establish their party rights. So, we hold that the case is not moot.

II. Was the Notary Public Qualified to Act? This was the point on which the case was decided in the trial court. As previously stated, each contest petition was signed and sworn to by ten or more Democratic electors before Frank Carpenter as a notary public in and for Garland County, Arkansas. This affidavit is required by Section 4738, Pope's Digest; and we have held that it is jurisdictional. See Lanier v. Norfleet, 156 Ark. 216, 245 S.W. 498; and Kirk v. Hartlieb, 193 Ark. 37, 97 S.W.2d 434. The trial court found that the affiants were qualified electors and members of the Democratic party; but that "the notary public was not qualified to administer an oath, being neither a de jure nor a de facto notary public."

The facts as regards Frank Carpenter's notarial status are these: He first moved to Garland County in 1938, and purchased and still owns "a lot to build a house on." He was a qualified voter, and voted in Garland County in 1940. In December, 1941 he went to Marche, Arkansas, and engaged in war work there and at various other places in Arkansas and Louisiana until "about the first of March," 1946, when he returned to Hot Springs. He paid a poll tax in Garland County on March 5, 1946 (but this did not allow him to vote in any election in 1946 prior to October 1st: Section 4697 Pope's Digest, as amended by Section 2 of Act 82 of 1939). He testified that he had all the time from 1940 maintained a residence at 306½ Orange Street, where he resided at the time of the trial. One June 21, 1946 the Governor of Arkansas appointed Frank Carpenter as a Notary Public in and for Garland County. He was issued a commission on that date, and duly filed his oath, and his bond as required by Section 10362 Pope's Digest. He was possessed of a notarial seal which he used on each affidavit here involved; and on each affidavit there appears the statement that his commission as a notary public expires June 21, 1950.

Against all of this, there is the fact that on June 21, 1946 (when he was commissioned as a notary public) Frank Carpenter did not have a poll tax receipt which allowed him to vote in any election in 1946 prior to October 1st. It is this failure to have a then current poll tax receipt that caused the Circuit Court to hold that Carpenter was not a notary public either de jure or de facto.

We have held that a notary public is a public officer. Sonfield v....