Curry v. Dawson
| Decision Date | 01 June 1964 |
| Docket Number | No. 5-3340,5-3340 |
| Citation | 379 S.W.2d 287,238 Ark. 310 |
| Parties | Ray CURRY, County Judge, et al., Petitioners, v. Lawrence E. DAWSON, Chancellor, Respondent. |
| Court | Arkansas Supreme Court |
Max M. Smith, Rison, Herschel H. Friday and John C. Echols, Little Rock, for petitioners.
Paul K. Roberts, Warren, for respondent.
This is a petition for a writ of prohibition. The petitioners are the defendants in a taxpayers' suit now pending before the respondent Chancellor. The taxpayers' action was instituted by James O. Young, and numerous other plaintiffs, to restrain and enjoin the defendants [petitioners], Ray Curry and other county officials, from the imposition and collection of a tax based upon a county election in which the voters in two townships had no opportunity to vote. The respondent overruled defendants' demurrer to the complaint, refused to dismiss plaintiffs' complaint for lack of jurisdiction, and set the case for trial.
Petitioners contend that the plaintiffs' complaint constitutes an election contest and, therefore, chancery court has no jurisdiction to try this issue. Also, that a writ of prohibition is the only effective remedy available to the petitioners. It is respondent's position that the pending action is not an election contest and jurisdiction exists because the petitioners are attempting to exact an illegal tax in violation of Article 16, § 13 of our State Constitution.
The allegations in the complaint pertinent to this appeal are that pursuant to the provisions of Amendment 17 of the Constitution of Arkansas, Amendment 25, a county election was held on December 10, 1963 and as a result of this election a majority of the electors, 426, voted in favor of and 388 electors voted against the proposed reconstruction and extension of the Cleveland County Hospital; that a majority, 408 electors, voted for and 389 electors voted against the proposed building tax; that as a result of the certification that all polls were open and the measures were approved by a majority vote, the Cleveland County Quorum Court levied a tax on the property of all the taxpayers of the county for the purpose of providing the necessary funds to finance the proposed building program; that the tax books are being extended and prepared for the collection of such tax, and it is proposed to offer general obligation hospital bonds for sale in the near future; that the election is void, the tax illegal, and the proposed sale of bonds is unauthorized because the certificate of the Election Commissioners is false since they 'failed and neglected to provide [an] opportunity for the citizens and voters of said two townships [Whiteoak and Whiteville] to vote on said measures'; and that if the 260 eligible electors in those townships had been permitted to vote, 90% or 234 would have voted against the proposed measures, thus changing the outcome of the election. In an amendment to the complaint, plaintiffs named 41 electors in Whiteoak Township and alleged that these were eligible voters who 'would have voted against both the proposed construction and the proposed building tax', thus changing the outcome of the special election.
The sole issue presented in the instant case is whether the action challenging the validity of the election is one to prevent an illegal exaction based upon a void election, or whether it is an action to contest an election.
We have often held that the questioning of the validity of the actual conduct of an election is an election contest and that the chancery court has no jurisdiction in such a cause. Rich v. Walker, 237 Ark. 586, 374 S.W.2d 476; Jones v. Dixon, 227 Ark. 955, 302 S.W.2d 529; Parsons v. Mason, 223 Ark. 281, 265 S.W.2d 526; Priest v. Mack, 194 Ark. 788, 109 S.W.2d 665; Hutto v. Rogers, 191 Ark. 787, 88 S.W.2d 68; Guthrie v. Baker, 224 Ark. 752, 276 S.W.2d 54. As was succinctly said in Parsons v. Mason, supra, an election contest involves 'going behind the returns and inquiring into the qualifications of the electors and other matters affecting the validity of the ballots.'
It is true that we have held chancery court has jurisdiction to enjoin...
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...where exclusive jurisdiction of the underlying matter was conferred on the circuit rather than the chancery court. Curry v. Dawson, 238 Ark. 310, 379 S.W.2d 287 (1967) [ (1964) Id. at 58, 701 S.W.2d at 379. In this case the taxpayer asked the circuit court to go behind the election and issu......
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