Cain v. Carllee

• Decision Date: 23 November 1925
• Docket Number: 3
• Citation: 277 S.W. 551,169 Ark. 887
• Parties: CAIN v. CARLLEE
• Court: Arkansas Supreme Court

277 S.W. 551

169 Ark. 887

CAIN v. CARLLEE

No. 3

Supreme Court of Arkansas

November 23, 1925

Appeal from Woodruff Circuit Court, Southern District; E. D Robertson, Judge; reversed.

Judgment reversed and cause remanded.

Roy D. Campbell, for appellant.

Ross Mathis, W. J. Dungan, J. F. Summers and J. F. Summers, Jr., for appellee.

OPINION

WOOD, J.

W. R Cain, hereafter called appellant, instituted an action in the Woodruff Circuit Court against E. M. CarlLee, hereafter called appellee, contesting the result of the Democratic primary election held in August, 1924, by which the appellee was declared the nominee for county judge. The pleadings and the proceedings had at the first trial are set forth in the opinion of this court in Cain v. Carl-Lee, 168 Ark. 64, 269 S.W. 57. This is the second appeal in the case. The judgment of the trial court was reversed on the first appeal and the cause remanded for a new trial because of an error of the court in holding that certain names which had been added to the assessment list of poll taxpayers of Woodruff County, contrary to the requirements of § 3738, C. & M. Digest, were qualified electors. After remand of the cause the appellant filed an amendment to his original complaint in which he set out a list of voters consisting of 145 in the Augusta precinct, 9 in Revell box, Augusta precinct, 79 in Cotton Plant precinct, 64 in McClellan precinct, 43 in White River, 33 in Point, 25 in Coney, making a total of 398 names. Appellant alleged that these names had been added by the collector to the legal assessment list of poll taxpayers contrary to the provisions of § 3738, C. & M. Digest; that not less than 328 of these illegal votes were cast for the appellee. He prayed that these illegal votes be deducted from the legal votes received by the appellee, which would give the contestant a plurality of the legal votes cast; and appellant prayed that he be declared the nominee, and that the appellee be ousted from office, and for all proper relief.

The appellee moved to dismiss the cause. He alleged that the appellant had violated §§ 3902, 3904, and 3899 of the law designated in chapter 54 of Crawford & Moses' Digest as the "corrupt practice act," and that under § 3775 appellant could not maintain the contest, and that he should be proceeded against as provided in § 3774 as for violation of the corrupt practice act. The appellant responded to the motion to dismiss and denied the allegations thereof, and among other things alleged that the allegations of the motion constituted no defense to the election contest instituted by the appellant. The court, after hearing the evidence adduced on the motion, took the same under advisement, to which ruling the appellant and the appellee both excepted.

On the issues thus joined the cause came on for a hearing on the 22d of May, 1925, and during the progress of the trial, on May 27th, the appellee moved to exclude from consideration as evidence in the cause the ballot boxes and ballots of the precincts of Pumpkin Bend, Tip and Chapple Grove, alleging that certain ballots in these boxes were changed from the way they were cast. The appellant moved the court to exclude from the evidence the ballot box and ballots therein of Augusta, alleging that the judges and clerks permitted Mrs. John Harrelson to vote ballot No. 440 for E. M. CarlLee, when Mrs. John Harrelson did not appear at the polls and cast a ballot. The appellant also moved the court to strike from consideration of the testimony the ballot box of the precinct of Cotton Plant, alleging that the judges and clerks counted therein ballot No. 307 cast by Mrs. Roy B. Parnell, when Mrs. Roy B. Parnell did not in fact cast a ballot in said box and did not appear at the precinct of Cotton Plant to vote. The court reserved its decision on these motions of the respective parties until final determination of the cause, to which ruling both parties excepted. When the cause was taken up for final hearing on the merits after the appellant had introduced three witnesses, the bill of exceptions shows that the following occurred: "The court would like to ask counsel what the necessity is for going over the same grounds we did in the former trial. We went through a great number of ballots. I see no necessity for going over that again. Let the attorneys get together on the votes." It was thereupon agreed by the attorneys representing both sides that they would secure the assistance of parties they might agree on and make a count of the votes in that manner and thereby be enabled to present the facts in a more concise way to the court; and those votes upon which they might fail to agree they would submit the facts to the court for his finding; and after several days of arduous work and the end not in sight, the court recessed until the 27th. For that reason the testimony of the witnesses Rives, Mitchell and Cain, above named, is not transcribed and because they were called at a later time." After several days of recess and after the investigation agreed upon by counsel in open court had been completed, it was announced in open court as follows: "We have by agreement eliminated the names which we desired to investigate, as to how they voted, and our lists have been checked repeatedly against each other, and we have agreed, beginning with each township, that, out of the recount as made by the committee, the following numbers of ballots were added without the parties having been assessed and certified to the clerk as required by law." Then follows the result ascertained in the various precincts, naming them, and designating the number of ballots after the elimination of the votes found to be illegal under the former ruling of this court. It was reported that of these illegal votes CarlLee had received 209 and Cain 139. After deducting these votes from the total votes of the respective candidates as reported by the committee appointed by the Democratic Central Committee to recount the ballots, it was found that CarlLee had 638 votes and Cain 676. The court thereupon proceeded to hear the testimony adduced by the respective parties concerning the integrity of the election in the precincts challenged as a whole and also the individual votes in precincts where same were questioned, and at the conclusion thereof announced as follows: "After hearing the evidence and the remarks of counsel and being sufficiently advised in the premises, it is by the court considered, ordered and adjudged that the complaint of the plaintiff be dismissed, and that the defendant recover his costs herein."

The appellant filed a motion for a new trial in due time setting up in the first, second and third assignments of error that the verdict was contrary to the law and the evidence; in the fourth, fifth and sixth, twelfth and thirteenth assignments that the trial court erred in rendering a decision in the case without making any special findings of fact on the evidence or ruling upon the pleadings and motions in the cause. In the seventh and eighth assignments that the court erred in allowing testimony to be introduced on the motion to dismiss the appellant's complaint and amended complaint; in the ninth assignment that the court erred in failing to cast out the entire vote of the Augusta precinct; in the 10th that the court erred in failing to cast out the entire vote in the Cotton Plant precinct; in the 11th that the court erred in permitting the records of the town council of McCrory to be introduced and particularly an instrument in writing purporting to be an agreement of certain members of the town council of McCrory to vote for an appropriation of certain money of the Planters' Mercantile Company for the purpose of paying the poll taxes; in the fourteenth, fifteenth, sixteenth and seventeenth assignments the court erred in passing upon the vote in certain precincts which were designated, including those in the precincts of Pumpkin Bend, Tip and Chapple Grove. In the 18th assignment that the judgment of the court is erroneous because it was contrary to the evidence and because the agreement of counsel shows conclusively that the appellant received a plurality of the votes cast at the primary election.

The court handed down a written opinion in its order overruling the motion for a new trial, holding that the precincts of Cotton Plant and Augusta should not be disregarded for the reason that the alleged illegal votes in these precincts could be segregated without assailing the integrity of the entire box. But that in each of the precincts of Pumpkin Bend, Tip and Chapple Grove, respectively, there were two votes changed to Cain after they had been cast by the voters by a line drawn through the name of CarlLee or Bronte and the erasure of a line which had been drawn through the name of Cain. The court held that this fraud, having been done by the judges or some one in charge of the ballots, impugns the integrity of the box, so the entire vote of these precincts should be thrown out.

The court further found that with these precincts disregarded there was no reason for finding the specific number each candidate received on a final count, it being apparent that the majority was against the contestant. The court disposed of the 4th, 12th and 13th paragraphs of the motion, relating to the failure of the court to make specific findings on the evidence and the rulings on the pleadings before or at the time of the rendition of the judgment, by saying that the contestant filed no request or prayer for special finding or declarations of law, and only made the request orally after the final judgment was pronounced. From the judgment rendered dismissing the appellant's complaint, he duly prosecutes this appeal.

1. We find no error in the...