Condren v. Gibbs

• Decision Date: 28 March 1910
• Citation: 127 S.W. 731,94 Ark. 478
• Parties: CONDREN v. GIBBS
• Court: Arkansas Supreme Court

127 S.W. 731

94 Ark. 478

CONDREN v. GIBBS

Supreme Court of Arkansas

March 28, 1910

Appeal from Sebastian Circuit Court, Greenwood District; Daniel Hon Judge; reversed.

Judgment reversed and cause remanded.

T. B Pryor and Holland & Holland, for appellant.

The official returns are quasi records and stand until overcome by affirmative evidence against their integrity. 73 Ark. 193; 50 Ark. 95. The county court has no jurisdiction to determine a contest for a district office. Art. 7, sec. 11, Const 1874; 68 Ark. 558; 66 Ark. 204. Parol evidence is inadmissible to contradict the returns of an election unless it be shown that the ballots have been tampered with. 53 P. 173.

Jo Johnson, for appellee.

The testimony of the voter is stronger than that of an election officer. 73 Ark. 187; 50 Ark. 85; 69 Ark. 501. The equivalent of fraud overturns returns. 41 Ark. 111. District overseer is the same as township overseer. Acts 1905, p. 463. When not attacked, the returns are the best evidence. 49 Ark. 238. County court had jurisdiction. 50 Ark. 270.

OPINION

FRAUENTHAL, J.

At the general election for State, county and township officers held on the 14th day of September, 1908, R. L. Condren and W. F. Gibbs were opposing candidates for the office of road overseer of the road district composed of Bass Little Township in the Greenwood District of Sebastian County. The election for this office was held under and by virtue of the act of the Legislature approved April 18, 1905, entitled "An act to provide for election of road overseers and for other purposes" in certain named counties, by which it is provided that all township and district road overseers in the Greenwood District of Sebastian County shall be elected in the same manner and for the same term as township and county officers now elected in the State of Arkansas, and that each political township shall constitute a road district. Acts 1905, p. 463.

The election officers of said Bass Little Township made due and proper returns of said election to the election commissioners of said county. According to the certificate and poll books thus returned, there were 139 votes cast at the election in said township; of these Condren received 65 votes and Gibbs 62 votes for the office of road overseer; and on twelve of said ballots no vote was cast for said office. The election commissioners proceeded to ascertain and declare the result of said election, and in pursuance thereof delivered to Condren a certificate of his election to said office. Thereupon Gibbs instituted proceedings in the county court to contest said election. The contestant, Gibbs, then proceeded to take his testimony by depositions, which he completed on March 9, 1909. He gave no notice at any time to the county election commissioners that the election of Condren to said office had been contested; and no such notice was given by Condren; and the election commissioners received no written notice from any source of said contest. The ballots and certificates of said election returned to them from said Bass Little Township were retained by the county election commissioners for a period of six months after said election and the returns had been delivered to them, and until March 22, 1909, when they destroyed them in pursuance of the provisions of section 2838 of Kirby's Digest. At the time the contestant took his testimony the said ballots cast at said election were in the custody of said county election commissioners, but no application was made by either party to the proper tribunal to have the same opened; and, as above stated, no notice was given to the election commissioners of the contest so that the ballots should be preserved. At the taking of the testimony on the part of contestant 78 witnesses testified that they had at said election voted for Gibbs for road overseer, and at the time the contestee objected to the testimony of each of these witnesses upon the ground that the returns of the election officers and the ballots were the best evidence, and that these could be impeached only by their introduction, and by evidence that they had not been actually cast as returned. The contest was tried by the county court at its April term, 1909, and a judgment rendered in favor of contestant, from which an appeal was taken by contestee to the circuit court. Upon a hearing of said appeal in the circuit court, a judgment was rendered by that court in favor of the contestant; and from that judgment the contestee prosecutes this appeal.

It is urged by counsel for contestee that the county court is not invested by law with the jurisdiction to try causes involving contest for the office of road overseer; that the statute making provision for the election of a road overseer does not name any tribunal as having jurisdiction in contests for said office; that on this account the circuit court alone had original jurisdiction to try the contest for this office under section 11 of article 7 of the Constitution. But by section 2960 of Kirby's Digest it is provided: "When the election of any clerk of the circuit court, sheriff, coroner, county surveyor, county treasurer, county assessor, justice of the peace, constable or any other county or township officer, the contest of which is not otherwise provided for, shall be contested, it shall be before the county court."

By the above act of the Legislature, approved April 18, 1905, it is declared that each political township in the county shall constitute a road district, and that a township road overseer shall be elected therefor. From this we are of the opinion that the office of road overseer in the Greenwood District of Sebastian County is a township office. We are, therefore, of the opinion that the county court had the jurisdiction to try the contest of the election of road overseer involved in this case.

The true object and duty of a court trying an election contest case is to ascertain who was in fact elected to the office but this can only be correctly determined by competent evidence and proof. The same rules of evidence that apply in suits over any property right should be applied to the contest of an election. It is the policy of the law to guard and maintain the purity of the ballot and to lay bare any false or fraudulent returns. But, in order to determine what the true result of the election was, it is necessary to adhere to and apply those rules which the experience of the courts and the law have established for the ascertainment of truth. The election judges, clerks and commissioners are sworn officers, and the returns made by them should be and are considered prima facie evidence of the result of the election, although they are not conclusive. As is said by Chief Justice HILL, speaking for this court in the case of Schuman v. Sanderson, 73 Ark. 187, 83 S.W. 940: "Official returns are quasi records, and stand until overcome by affirmative evidence against their integrity." Powell v. Holman, 50 Ark. 85, 6 S.W. 505. The...