La Fargue v. Waggoner
| Citation | 75 S.W.2d 235 |
| Decision Date | 08 October 1934 |
| Docket Number | No. 4-3692.,4-3692. |
| Court | Supreme Court of Arkansas |
| Parties | LA FARGUE v. WAGGONER, Judge, et al. |
M. F. Elms, A. G. Meehan, and John W. Moncrief, all of Stuttgart, for petitioner.
G. W. Botts and Geo. E. Pike, both of De Witt, and W. A. Leach, of Stuttgart, for respondents.
Jeta Taylor, J. E. Yates, and Benson & Woolsey, all of Ozark, amici curiæ.
The primary election was held on August 14, 1934. In Arkansas county there were several candidates for sheriff, and no one of them received a majority of all the votes cast in said primary election for sheriff and collector, and the Democratic Central Committee, on August 15, 1934, decided that C. C. McCallister and Lloyd La Fargue had received the highest numbers of votes cast in said primary election for said office, and they were each declared to be eligible as candidates for the nomination to said office in the run-off primary which was held on August 28, 1934. After the run-off primary the Arkansas County Democratic Committee canvassed the returns and certified that La Fargue had received 2,102 votes and McCallister 2,037 votes, and declared La Fargue the nominee of said primary election.
On September 4, 1934, C. C. McCallister filed a complaint against Lloyd La Fargue in the Arkansas circuit court to contest said election and the certificate of nomination. He alleged in his complaint that the plaintiff and defendant, together with J. A. McKay, W. C. Woodson, Eddie Hughes, and Abbott Trice were candidates on August 14, 1934, for the Democratic nomination for the office of sheriff and collector of Arkansas county; that neither of the above-named persons received a majority of all the votes cast in said primary election, and this fact having been ascertained by the Democratic Central Committee, and the committee having ascertained that plaintiff and defendant had received the highest number of votes cast in said primary election for said office, they were by said committee declared and certified to be eligible as candidates for the nomination to said office in the run-off primary to be held subsequently. Plaintiff and defendant were candidates in said run-off primary held on August 28, 1934. On August 31, 1934, the central committee canvassed the returns and declared that defendant had received 2,102 votes and that the plaintiff had received 2,037 votes, and declared the defendant the nominee, and so certified him to be the nominee. Plaintiff denied that defendant was the nominee; denied that he had received 2,102 votes; and alleges that in one township 125 qualified electors each cast his ballot for the plaintiff, and that each of said ballots were counted for the defendant. The list of names of these 125 voters was attached as Exhibit A to the complaint, and made part thereof. Plaintiff alleges that numbers of other persons voted for the defendant who were not qualified electors. He also alleges irregularities in the handling of the vote of Keaton township. Irregularities are also alleged in the primary election in the town of De Witt, and it is alleged that illegal votes were cast and counted for the defendant. It is also alleged that persons living in Prarie township voted in De Witt, and voted for the defendant. It is further alleged that of the total number of votes cast in said primary election, plaintiff received 2,237, and the defendant not more than 1,838, giving the plaintiff a majority of 399 legal votes, and he asks that the returns of the election be purged of all illegal votes, and that he be declared the nominee. The complaint was supported by more than ten persons, each of whom swore that he was a reputable citizen of Arkansas county, a member of the Democratic Party, and qualified elector of Arkansas county.
On September 10, 1934, an amendment was filed by plaintiff, naming the persons whom he alleges voted for the defendant who were not qualified electors. He alleges that plaintiff is a resident of, and qualified elector in, Arkansas county, and is, and was at the time of the voting, qualified to hold the office of sheriff and collector.
On September 12, 1934, the defendant filed a demurrer to plaintiff's complaint, in which he stated: First, that the complaint fails to state facts sufficient to constitute a cause of action; second, that the complaint fails to state facts sufficient to confer jurisdiction on the court to grant any relief to plaintiff. On the same day, September 12, defendant filed a motion to dismiss, in which he set up the same grounds that he did in his demurrer, and in addition to these, that the complaint was not verified as required by law, and that the amendment to the complaint was filed after the expiration of ten days.
Thereafter, on September 17, 1934, the defendant filed an amendment to his motion to dismiss, setting up numerous grounds in addition to what he had already alleged.
On September 21st the court overruled the demurrer and also overruled the motion and amendment to motion to dismiss, and held that the court had jurisdiction to proceed to a hearing and determination of the case.
Thereupon the defendant announced that he would apply to this court for a writ of prohibition, and on September 21st filed his petition for a writ of prohibition against W. J. Waggoner, circuit judge, and C. C. McCallister, prohibiting the circuit court from exercising jurisdiction.
The parties have filed lengthy briefs, and we will not undertake to review all the authorities to which attention has been called by the parties.
It is earnestly contended that Act No. 38, p. 109, of the Acts of 1933 does not provide for any contest. It is true that it does not say anything about contesting the run-off primary, but the sole purpose of the original law (Crawford & Moses' Dig., § 3772 et seq.) authorizing a contest is to secure the certification and nomination of the person who has received the highest number of legal votes Before the passage of Act No. 38 the person receiving the highest number of legal votes in a primary election was declared the nominee and certified as such, although he might not have received a majority of all the votes. There might be so many candidates in the race for any particular office that the one getting the highest number of votes would have a very small per cent. of the total vote, and it was to remedy this condition that the Legislature passed Act No. 38, the purpose being to certify no one as the nominee of the party unless he had received a majority of all the legal votes cast. The purpose of the Primary Election Law (Crawford & Moses' Dig. § 3754 et seq.) is to enable a political party to hold a legal election and certify the person as nominee who receives the greatest number of legal votes. Act No. 38 was passed to correct the evil above mentioned, and is a part of the system providing for primary elections, and must be construed with the original act authorizing primary elections. While the act does not say so in so many words, this is an amendment of the primary election law. Prior to the passage of this act, the law provided for contesting the election.
"Statutes must have a rational interpretation to be collected not only from the words used, but from the policy which may be reasonably supposed to have dictated the enactment, and the interpretation should be rigorous or liberal, depending upon the interests with which it deals." 25 R. C. L. 1077.
It would be unreasonable to suppose that the Legislature intended to provide for a run-off primary and prohibit a contest, because if it prohibits one at all, it prohibits, no matter how much fraud might be practiced in the run-off primary. The purpose of the primary law and the provisions for contesting is to secure fair elections, and the nomination of the candidate who receives the highest number of legal votes. Under the original law, as we have already said, one receiving a plurality, no matter how small, was declared the nominee. It was evidently the intention of the Legislature to remedy this particular evil and to amend the general law in that respect. It provides that no person shall be declared the nominee of any political party at any primary election unless such person has received a majority of all the votes cast at such primary election, and that is the only difference between Act No. 38 and the law as it was before.
Act No. 38 also provides that the second primary election shall be conducted according to the law prescribed for conducting the general primary election, and we think this means that the law prescribed for conducting the general primary election governs in every respect, except that the candidate, in order to get the certificate of nomination, must get a majority of all the votes cast.
The original act (Acts 1917, p. 2287, § 2) provides not only for the election to be held on a certain day, but it also provides that special primary elections may be called to fill vacancies, and that this law shall govern the same as far as applicable. There is nothing in the section providing for special primaries, about a contest.
Section 12 of the Initiative Act (Crawford & Moses' Dig. § 3772) provides that a right of action is conferred on any...
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