Colvin v. Finch

• Decision Date: 23 April 1905
• Citation: 87 S.W. 443
• Parties: COLVIN et al. v. FINCH.<SMALL><SUP>*</SUP></SMALL>
• Court: Arkansas Supreme Court

87 S.W. 443

COLVIN et al. v. FINCH.^*

Supreme Court of Arkansas.

April 23, 1905.

Appeal from Circuit Court, Perry County; Robert J. Lea, Judge.

Petition for prohibition under the three-mile law by G. B. Colvin and others, George Finch, objector. From a judgment of the circuit court, rendered on appeal from the county court, denying the petition, petitioners appeal. Reversed.

This appeal is from a judgment denying a petition for prohibition under the three-mile law. The petition was in due form, and had 337 signers. It was filed with the clerk of the county court December 31, 1904. On January 2, 1905, appellee was made a party to the proceeding, and through his counsel presented the applications of 51 of the signers to the petition asking to be allowed to withdraw their names. These applications were as follows, which are designated 1, 2, 3, 4:

(1) "We the undersigned adult inhabitants residing within three miles of the public school building in School District No. 43, in Perry county, Ark., and who have signed a petition asking your honor to make an order prohibiting the sale or giving away of vinous, spirituous, or intoxicating liquors within three miles of said public schoolhouse, after mature deliberation ask your honor that our names be taken from said petition, and that they be not considered thereon."

(2) "We, the undersigned, respectfully state and show to the court that our names appear upon a certain petition to prohibit the sale or giving away of ardent liquors within three miles of the district schoolhouse situated in the town of Perry, in said county. At the time the petition was presented to us we stated that we were in favor of license, and would sign a petition for license, and believed that we were signing for license. That we were misled, and now petition this honorable court to have our names removed and erased from said petition; and in duty bound will ever pray," etc.

(3) "I most respectfully beg that my name be erased from the petition prohibiting the sale of intoxicating drinks within a radius of three miles from the public schoolhouse of Perry, Ark. The reason I ask this is because I believe unjust means have been used to secure signers to the aforesaid petition, and therefore pray that my name be removed from the petition."

(4) "We would respectfully show to the court that heretofore we were induced by representations made to us to sign a petition to the honorable court to prohibit the sale or giving away of intoxicating liquors within three miles of said schoolhouse, but since signing said petition we are inclined to the belief that the matter was not fairly presented to us. We therefore desire that our names be withdrawn from said petition, and pray this honorable court that the same may be done."

On the 7th of January it was admitted in open court "that, if said petitioners were present, they would testify that they were induced to sign said petition by misrepresentations made to them as set forth in their several petitions." The "petitioners" referred to in this admission were those signing the applications for withdrawal. The county court thereupon allowed the names of these 51 signers to be withdrawn from the petition. The county court also found that 2 persons had signed twice, and that there were 3 minors, and that 11 of the signers on the petition lived outside the three-mile limit, and therefore took from the petition 16 more names, making a total of 67 names taken by the county court from the petition. The number of adult inhabitants living in the three-mile limit, as claimed by the petitioners, was 585. A majority of these would be 293. The petition had 337 signers. So when the 67 names were taken off there remained 270 signers, or 23 less than a majority. The county court therefore refused the petition, and an appeal was taken to the circuit court. On the trial in the circuit court appellants proved the number of adult inhabitants in the district to be 584, and that the petition as signed contained at least 324 legitimate signers, including the 51 names which the county court had allowed to be withdrawn on their written application. The circuit court, over the objection of appellants, considered these written applications for withdrawal in evidence, and allowed these names to be withdrawn. This left the petition with 275 signers according to the best showing made by appellee, and left appellants 17 short of the necessary majority. The circuit court...