Brown v. Nisler

• Decision Date: 11 March 1929
• Docket Number: 204
• Citation: 15 S.W.2d 314,179 Ark. 178
• Parties: BROWN v. NISLER
• Court: Arkansas Supreme Court

15 S.W.2d 314

179 Ark. 178

BROWN v. NISLER

No. 204

Supreme Court of Arkansas

March 11, 1929

Appeal from Conway Circuit Court; J. T. Bullock, Judge; affirmed.

Judgment affirmed.

Dean Moore & Brazil and Downie & Schoggen, for appellant.

Strait & Strait and Ned Sellers, for appellee.

MCHANEY J. SMITH and KIRBY, JJ., dissent.

OPINION

MCHANEY, J.

Appellant and appellee were rival candidates for the office of sheriff of Conway County, before the primary election held on August 14, 1928. According to the returns of said election, as certified by the Democratic County Central Committee, appellee received 1,302 votes and appellant 1,121 votes, or a majority of 181 votes in favor of the appellee.

Within the time provided by law appellant instituted this contest in the circuit court of said county, by filing a complaint charging that he had received 1,121 legal votes, and that, although appellee was credited with 1,302 votes, 720 thereof were illegal, should not have been counted, and that he had therefore been nominated by a majority of 539 legal votes. The complaint further alleged that, of the 720 illegal votes counted for appellee, 250 were illegal because they had not assessed any poll tax prior to the second Monday in September, 1927, either with the assessor or county clerk, and that more than 470 of said number of illegal votes should be rejected because their names did not appear on the certified list of legal voters furnished to the election judges, and that in no instance did the judges require persons whose names were not listed in the printed list of qualified electors to exhibit a poll-tax receipt or certified copy thereof, or an affidavit showing that any of such persons had attained the age of twenty- one years since the last assessing time, and that the judges wholly failed to make a separate list of the names of such persons voting who were not on the certified list, together with the other evidence of their right to vote, nor was any such record returned to the county central committee with the returns of the election, as required by law. The complaint further alleged in detail the names and numbers of persons so voting whose votes were charged to be illegal in the various townships, and challenged other votes on other grounds.

Appellee answered, denying all the material allegations in plaintiff's complaint, and filed a cross-complaint, alleging that appellant received many illegal votes for various reasons.

Much testimony was taken by both parties, and many weeks were consumed in the taking of testimony and in the trial of the case, running through a record of more than 1,200 pages. During the course of the proceeding the court appointed a canvassing committee of four persons to recount the ballots, of which each of the parties named two, and this committee, after canvassing the votes, made a report showing that appellee had received 1,275 votes and appellant 1,135, or a majority of 140 votes for appellee. This committee was appointed and made its report subject to the right of the court to hear the testimony and determine the legality of many votes. At the conclusion of the hearing, the court made the following finding:

"On this day the case of Fred Brown, contestant, versus Sherman Nisler, contestee, is submitted to the court upon the pleadings and testimony and the argument of counsel; and the court holds that § 3740, C. & M. Digest, was not substantially complied with, and that the printed list purporting to be a list of the poll-tax payers under said section was not made in the manner provided by law, and that it has no legal and binding effect, and that the contestant's cause of action fails because of the failure upon the part of the officers to file a proper list of the poll-tax payers in the manner provided by law, and the contestant's cause of action is therefore dismissed."

We are first called upon to decide whether the learned trial court was correct in so holding. If this holding of the court is correct, that is, that § 3740 of C. & M. Digest was not substantially complied with, it necessarily follows that appellant's contest must fail, because there is no basis for determining the legality of many of the votes challenged by appellant. This section of the Digest reads as follows:

"On the first Monday in July of each year the collector shall file with the county clerk a list containing the correct names, alphabetically arranged (according to political or voting townships, and according to color), of all persons who have, up to and including that date, paid the poll tax assessed against them respectively. The correctness of this list shall be authenticated by the affidavit of the collector in person. The county clerk shall at once record the said list in a well-bound book to be kept for that purpose, and, on or before the 15th day of July, shall deliver to the county election commissioners, or to the chairman or secretary of the said board, a certified copy thereof. The original shall be kept on file in the office of the said clerk, free to the inspection of any elector of said county, and the clerk shall, on demand, accompanied by the fee prescribed by law for making a copy of any instrument for record, make a copy thereof for any person. The county election commissioners shall cause to be printed a sufficient number of said lists to supply to each judge of election at every general or special election a copy thereof, to be sent to such judge with the ballots and blank poll books now directed to be sent preparatory to holding an election. The said election commissioners are authorized to have said printing done at an expense not to exceed one dollar and fifty cents for each one hundred names on said list. The fees of the county clerk for all services to be rendered by him in filing, recording and furnishing to the election commissioners a certified copy of said list shall be ten cents for each one hundred words contained in said list and the certified copy thereof so furnished to said commissioners."

The very first requirement of this statute is that the collector shall, on the first Monday in July, file with the county clerk the list of poll-tax payers, and that "the correctness of this list shall be authenticated by the affidavit of the collector in person." The statute does not permit a deputy in the collector's office to authenticate the list, but it must be done by the collector himself, on his own affidavit. When the list is filed with the clerk, it is made his duty to record it in a well-bound book to be kept for that purpose, and, on or before the 15th of July, he is required to deliver a certified copy thereof to the county board of election commissioners, and shall keep the...