Cain v. Carl-Lee

• Decision Date: 23 February 1925
• Docket Number: (No. 196.)
• Citation: 269 S.W. 57
• Parties: CAIN v. CARL-LEE.
• Court: Arkansas Supreme Court

269 S.W. 57

CAIN v. CARL-LEE.

(No. 196.)

Supreme Court of Arkansas.

February 23, 1925.

Rehearing Denied March 16, 1925.

Appeal from Circuit Court, Woodruff County; E. D. Robertson, Judge.

Election contest by W. R. Cain against E. M. Carl-Lee and another. From a judgment in favor of defendant named, contestant appeals. Reversed and remanded.

Roy D. Campbell, of Cotton Plant, for appellant.

Ross Mathis, of Cotton Plant, and J. F. Summers, of Augusta, for appellee.

SMITH, J.

E. M. Carl-Lee and W. R. Cain, together with J. L. Bronte, were rival candidates for the Democratic nomination for county judge of Woodruff county in the primary election held in that county on August 12, 1924, and in due time thereafter Cain filed his complaint against his two opponents, contesting the nomination of Carl-Lee, who had been certified by the Democratic county committee as the nominee.

The complaint, which was in proper form, alleged that on the face of the original returns Carl-Lee received 925 votes, Cain 910, and Bronte 170. That a recount, which was demanded by Cain, was granted, and a subcommittee of three, consisting of two partisans of Carl-Lee and one of Cain, recounted the votes, and as a result of this recount the vote of Carl-Lee was announced as 847, Cain 815, and no vote was announced as having been cast for Bronte. This recount resulted in 173 votes having been thrown out by the subcommittee as illegal for one reason or another, but, as stated, this recount showed that Carl-Lee had received a plurality of the votes cast, and he was duly certified as the nominee, and thereafter this contest was instituted.

The complaint contained many allegations of illegality and fraud. It was alleged that many persons, whose names were stated, had voted for Carl-Lee whose names were not on the legal list of voters which the clerk of the county court is required to furnish under section 3740, C. & M. Digest, and that the poll tax receipts of such parties were not attached to the ballots as required by section 3777, C. & M. Digest. That after the clerk had delivered the personal tax books to the collector, the names of many persons were added to the tax books by the collector and poll tax receipts issued, and that this was done without such persons appearing before or being assessed by the county clerk as required by section 3738, C. & M. Digest. The poll tax receipts were issued to and votes cast by persons who were not otherwise entitled to vote. That persons had been permitted to vote in townships in which they did not reside. That votes had been received and counted as being cast by persons who did not, in fact, vote at all. That many persons had been permitted to vote on poll tax receipts which had been paid for by other persons, without the voter having requested that this be done and without any agreement on the voter's part to pay for same. That ballots had been mutilated by the judges and thrown out because of such mutilation. That in counting the votes cast for Cain, many ballots were thrown out because of a difference in the initials or the spelling of a name. That in this number were included the wives of a number of electors who had paid the tax in their names and had given the names of their husbands, and vice versa, for instance, May Browning, the wife of Luke Browning, voted as May Browning, when she appeared on the list as Mrs. Luke Browning; but that the same rule was not applied in recounting the votes cast for Carl-Lee. That the ballots of certain electors whose names appeared on the published list of electors with the letter (C) opposite the name were thrown out on that account, although they were white men, and were otherwise qualified to vote in the primary election. That a majority of the election officers were partisans of Carl-Lee, and had the same rule been applied alike in passing upon the competency of the electors voting for both Cain and Carl-Lee, there would have been a difference in Cain's favor in the count of 50 votes. The complaint is specified in its allegations, but we only summarize them.

The answer filed by Carl-Lee contained a denial of all these allegations, and alleged that a number of illegal votes had been cast for Cain. The answer, in effect, charged that fraud had been committed by election officers of which Cain was the beneficiary. The answer further alleged that the votes of six electors cast for Carl-Lee under the absent voter's law had been rejected. In reply to this last allegation Cain admitted that these six votes had not been counted for Carl-Lee; but it was alleged that they should not have been so counted because of a failure on the part of the electors to properly comply with the absent voter's law.

Upon these charges and countercharges, a great many witnesses were examined, and we have before us a transcript of more than 600 pages.

After hearing all the testimony the court made the general finding that Carl-Lee had received a majority of all the legal votes cast at the election, and was entitled to be declared the nominee.

The judgment of the court did not indicate the court's finding on any of the numerous questions of fact raised, and that was no finding as to the number of legal votes either candidate had received, so we do not know which, if any, of the contentions made by Cain were sustained by the court.

A motion for a new trial was filed by Cain, consisting of 16 assignments of error, in which error was assigned in the refusal of the court to sustain each of the allegations contained in the complaint.

The tenth ground for a motion for a new trial reads as follows:

"That the court erred in holding that the following parties whose names were added to the list of those who had paid their poll taxes after the tax books had been certified by the clerk to the collector for collection were legal voters and counted the same as a part of the vote having been received by the defendant, E. M. Carl-Lee, when said voters had not complied with the laws of the state of Arkansas in order to get their names added to the list of poll tax voters; said parties being in the following Townships and as follows, to wit:" (Then follows a list of the names of such electors under the name of the township in which they had voted).

And the tenth assignment of error concludes with the following statement:

"The above list of names, being 104, substantially all of said parties having voted for the defendant, E. M. Carl-Lee, and neither of the said parties having caused their names to be added to the list of parties paying their poll taxes as required by the laws of the state of Arkansas, and particularly section 3738 of Crawford & Moses' Digest of the statutes of Arkansas, it appearing from the ballots cast by said parties that approximately all of the number had cast their votes for the defendant, E. M. Carl-Lee."

The court overruled the motion for a new trial and, in doing so, made the following finding of fact and declaration of law:

"This case turns upon the tenth ground alleged in plaintiff's motion for new trial, that `said voters had not complied with the laws of the state of Arkansas in order to get their names added to the list of poll tax voters.'

"It is conceded by counsel for contestant that they paid their poll tax within the time prescribed by law (section 3741, C. & M. Digest); the contention being made that the elector must first apply to the county clerk to have his name included in the list under section 3738. In other words, he must be registered somewhere, before he has the right to tender to the collector his poll tax.

"But article 3, § 2, of our Constitution, is to the effect: `Nor shall any law be enacted whereby the right to vote at any election shall be made to depend upon any previous registration of the elector's name.' This provision annulled all requirements for registration under the Reconstruction Acts of 1868.

"There is no form even of registration required under Amendment No. 6 (Poll Tax Amendment); the only requirement being that the elector shall have `paid his poll tax at the time of collecting taxes next preceding such election.' And section 3741 defines the meaning of the phrase, `time of collecting taxes.' If the collector accepted his money and issued a receipt or other evidence of payment of poll tax, that is all the Constitution required.

"It appears here that the collector entered the names of these electors upon the tax books in the same manner that the clerk would have done, and thereby charged himself with the taxes in the same manner that the clerk would have done had the electors applied to him in the first instance and before the books were delivered. And that the clerk approved the action of the collector by including these names in the list he furnished the election commissioners under section 3740, C. & M. Digest.

"It is held in Craig v. Sims, 160 Ark. 269, 255 S. W. 1, that the collector cannot issue poll tax receipts after the first Monday in July, but that holding was upon the facts in that case, and the question here was not before the court."

The court was in error in the application made of the decision of this court in the case of Craig v. Sims, 160 Ark. 269, 255 S. W. 1. We there construed section 3777, C. & M. Digest, and, in doing so, we said:

"The statute does not give the county collector the power to assess a poll tax and deliver it to a person otherwise qualified to vote at an election. Hence he can have no such power. His power is only to collect a poll tax as provided."

In that case the contention of the contestant, that the votes of such persons were illegal and should not be counted, was upheld, but no relief was given him on that holding, because he had not shown that the votes of such persons were cast for his opponent. We there said:

"Conceding that these poll tax receipts were illegally issued by the collector and purchased by the contestee or other persons for his benefit, still this falls...