Faver v. Cleveland Circuit Court, 4-9161

• Decision Date: 06 March 1950
• Docket Number: No. 4-9161,4-9161
• Citation: 216 Ark. 792,227 S.W.2d 453
• Parties: . Supreme Court of Arkansas
• Court: Arkansas Supreme Court

Page 453

227 S.W.2d 453

216 Ark. 792

FAVER et al. v. CLEVELAND CIRCUIT COURT et al.

No. 4-9161.

Supreme Court of Arkansas.

March 6, 1950.

Warren E. Wood and Griffin Smith, Jr., Little Rock, for petitioner.

Max M. Smith Rison and DuVal L. Purkins, Warren, for respondent.

MILLWEE, Justice.

Petitioner, Early Faver, and Buck Cavin were rival candidates for the office of director in the annual school election held in Woodlawn School District No. 6 of Cleveland County on September 27, 1949. Faver was certified as the successful candidate on October 4, 1949 and a 26 mill school tax was also certified as having failed to passage. On October 14, 1949 Buck Cavin and others filed a petition with the Cleveland County Board of Education to contest said election. Faver and the other contestees filed a response alleging that the petition to contest was not filed within the time required by law. The County Board of Education held that the action was filed too late and dismissed the contest. On appeal, the circuit court on November 23, 1949 ruled that the contest was filed in time and ordered the cause to stand for trial.

Early Faver and the other petitioners filed the instant action in this court on December 13, 1949 seeking a writ of prohibition to restrain the Cleveland Circuit Court from further proceeding and alleging the foregoing facts. The response admits the truth of these facts but denies that the circuit court is without jurisdiction or that the petitioners' remedy by appeal is inadequate.

Petitioners contend that the contest petition by Buck Cavin and others before the County Board of Education was filed too late under the provisions of Section 30 of Act 169 of 1931 which they contend is the statute governing the time for filing contests of school elections. The pertinent part of said Section 30 reads: 'Any contest of any results of any election in any school district shall be brought within fifteen days after such election, if the results thereof shall have been certified to the county clerk five days previously, or within five days after such results have been certified, and not thereafter. The county board of education shall hear and decide all contests, and make their findings thereon, and such findings shall be conclusive, subject to appeal by the losing party, to the Circuit Court within ten days. * * *'

It is undisputed that the contest involved in the instant case was filed October 14, 1949, more than 15 days after the election held on September 27, 1949 and more than five days after the certification of the results on October 4, 1949. If this statute governs, the petition for contest was filed too late and the county board was without jurisdiction to proceed and the circuit court, therefore, acquired no jurisdiction on appeal.

Act 169 of 1931 contained 198 sections and dealt with all phases of school affairs. Subsequent acts have repealed or amended many sections of the original act but many of them are still in effect. Although Section 30 has not been specifically repealed, it was not carried forward in our present digest on the theory that it was superseded by Section 11 of Act 30 of 1935, Ark.Stats. 1947, Sec. 80-311. See parallel reference tables to said section in Ark.Stats. 1947, Vol. 8, p. 1236. While certain parts of Sec. 30 of Act 169 of 1931 were changed and superseded by the 1935 act, there is no reference in said act to the subject of school election contests and that portion of Section 30 above quoted was not changed or repealed by the 1935 enactment.

It is the contention of respondent that said Section 30 of Act 169 was repealed by Act 406 of 1947. Section 1 of said act now appears as Ark.Stats. 1947, Sec. 3-1203 and reads: 'All actions to contest the election of a person to any county, city or township office shall be commenced within twenty (20) days after the General Election at which any such person was elected.'

Respondent also relies on Section 1 of Act 56 of 1949, Ark.Stats. 1947, Sec. 80-317, which provides: 'Hereafter the County Board of Election Commissioners shall be charged with the responsibility of selecting Judges and Clerks of all school elections held in the several counties of this State. Said County Board of Election Commissioners shall also be authorized and employered to make all necessary arrangements for conducting school elections and the general election laws, insofar as applicable, shall apply to school elections.'

Following the adoption of Act 169 of 1931 this court held the 15 day limitation contained in Sec. 30 applicable in school election contests. Koser v. Oliver, 186 Ark. 567, 54 S.W.2d 411; Shimek v. Janesko, 188 Ark. 418, 66 S.W.2d 626. This court has also recently held that the county board of education is the proper forum for contesting school elections as provided in said Section 30. Attwood v. Rogers, County Judge, 206 Ark. 834, 177 S.W.2d 723; Casey v. Burdine, 214 Ark. 680, 217 S.W.2d 613.

Respondent relies on the case of Ferguson v. Wolchansky, 133 Ark. 516, 202 S.W. 826, 827, where it was held that the office of school director was included within the designation 'county officer', within the meaning of a statute providing for the contest of the election of such officers. But the court was careful to point out that this conclusion was reached because the legislature had not provided otherwise, saying: 'There is no other specific provision for the contest of the office of school director, and we think that that office is included within the designation of county offices within the meaning of the statute.' The General Assembly did make specific provision for contest of the election of...