Ferguson v. Montgomery

• Citation: 229 S.W. 30,148 Ark. 83
• Decision Date: 28 March 1921
• Docket Number: 246
• Parties: FERGUSON v. MONTGOMERY
• Court: Supreme Court of Arkansas

229 S.W. 30

148 Ark. 83

FERGUSON v. MONTGOMERY

No. 246

Supreme Court of Arkansas

March 28, 1921

Appeal from Johnson Circuit Court; A. B. Priddy, Judge; reversed.

STATEMENT OF FACTS.

This is a suit to contest a primary election brought in the circuit court under our statute, by J. M. Montgomery against G. D Ferguson to contest the nomination for the office of county judge of Johnson County.

Montgomery the contestant, alleged that he received more legal votes for the office of county judge in the Democratic primary held the 10th day of August, 1920, than were cast for Ferguson, the contestee, but that the latter had been returned as the the Democratic nominee for said office.

In his complaint, Montgomery alleged that certain fraudulent practices were indulged in and certain illegal votes were cast for Ferguson in certain voting precincts named in his complaint. His complaint states the number of illegal votes received by Ferguson and the townships in which they were received.

Ferguson filed an answer within the time prescribed by the statute and specifically denied the allegations of the complaint. He stated that certain illegal votes were cast for the contestant in certain townships named by him in his answer.

The number and character of the illegal votes are stated in the answer. The proof developed irregularities and illegal votes in other townships than those named in the pleadings, and Montgomery was permitted during the trial to amend his complaint to conform to the proof taken. This was done over the objections of Ferguson.

At the conclusion of the hearing the circuit court found that Montgomery had received fifty-five more votes in the primary election than Ferguson. Judgment was accordingly rendered declaring Montgomery the Democratic nominee for the office of county judge of Johnson County, and his name was ordered to be placed upon the official ballot to be voted in the general election held in said county on Tuesday, November 2, 1920.

From the judgment rendered, Ferguson has duly prosecuted an appeal to this court.

Montgomery was duly elected at the general election aforesaid and has been holding the office of county judge of Johnson County since that time.

Judgment reversed and cause remanded.

Jesse Reynolds, Paul McKennon and Hill & Fitzhugh, for appellant.

1. The court erred in overuling the complaint on account of the insufficiency of the supporting affidavit.

2. It was error to refuse to admit testimony as to the alleged Republican votes cast for Montgomery. This was a Democratic primary, and Republican votes could not be counted. Ballots not numbered were counted, and the vote in Pittsburgh township should have been cast out.

Ward township's vote should have been cast out, and the judges bet on the election. Illegal votes were cast by Republicans. 125 P. 739; 129 Cal. 337; 61 P. 1115; 22 S.D. 146; 115 N.W 1121; 228 Ill. 111; 81 N.E. 1109; 40 Ore. 166; 66 P. 714; 92 Neb. 313; 43 L. R. A. (N. S.) 282. Under the law no candidate should be declared a Democratic nominee where his majority is made up of Republican votes. The court went beyond the pleadings in making its findings. Its departure from the issues was material, and the evidence did not authorize it. 159 S.W. 646. Ballots not numbered were illegal. Kirby's Digest, § 2811; 69 Ark. 501; Brundidge act, § 9.

In Stonewall township not all the ballots were signed, and in Pittsburgh Township twenty-two ballots were not signed. In two townships judges of election were forced out by physical or moral suasion and by-standers not electors, or committee, chosen their successors. Kirby's Digest, §§ 2801-2. The Constitution and laws were ignored and violated, and the law should be upheld.

Webb Covington, for appellee.

1. The supporting affidavit was sufficient. 136 Ark. 217; 136 Ark. 221.

2. The law authorizes the amending of the complaint. Initiative act No. 1, § 12, p. 296; 125 Ark. 561-2.

The allegations of the complaint were sufficiently broad, and it was the duty of the court to repect all illegal ballots. 32 Ark. 561.

3. The complaint was subject to amendment. 159 S.W. 646.

4. No illegal votes were counted. Initiative act No. 1, § 17, p. 2302, Acts 1917. See 26 R. C. L., § 35, p. 1032; 95 Ark. 443; 57 N.J.L. 442; 51 Am. St. 624.

Courts do not require a voter to disclose for whom he voted. 49 Ark. 238; 53 Id. 172. The act is constitutional. 40 Ore 167; 66 P. 714.

None of the objections made by appellant are fatal. 43 Ark. 62. Illegal votes do not affect the result of an election unless it appears how they were cast. 54 Ark. 409. The returns are accepted when purged of the illegal votes. 73 Ark. 187. It is immaterial whether illegal votes are received or not if not sufficient to overcome the majoity. 39 Ark. 549. Nothing will justify the exclusion of an entire township vote if the election has been legally held and fairly conducted, unless it renders it impossible to ascertain the majority vote. 124 Ark. 256; 49 Id. 241. There was no error in the Pittsburgh vote, nor in Grant Township, nor in Hill Township. As far as the returns show, no election was held in Hill Township. It takes poll books and tally sheets to make a prima facie showing of an election. 102 Ark. 651. The returns are shown by the record to be in the handwriting of one man, Tom Holland. The entire ticket is in his handwriting, and there was no certificate of the judges and clerks. This is not such a return as requires appellee to produce any proof whatever. Hill Township vote should have been excluded from the count, and it gave appellant twenty-five votes and appellee one. The evidence in reference to the vote in Ward township fails to disclose any state of facts calling for a recount, and the court properly overruled the motion.

It is admitted that probably 500 names were added to the polltax list after the 3d of July, 1920. These polltax receipts were illegal, and there were erasures and changes in the record, as shown by the testimony.

At the general election in November, 1920, the county judge was elected in Johnson County; and if appellee was elected county judge, the result of this cause can not affect that election.

There were combinations and numerous violations of law. Acts 1913, act 308, §§ 10-12. There was a combination to defeat the will of the people and deprive them of their choice for county judge. They violated the election laws. It is clear that they did not intend for appellee to receive the nomination and resorted to many illegal methods to defeat him. The court below had the parties before him and heard all the evidence, and the findings are supported by the law and a clear preponderance of the evidence.

HART, J., MCCULLOCH, C. J. dissenting.

OPINION

HART, J. (after stating the facts).

By the Initiative Act of 1917, it is provided that all political parties selecting their candidates for office through primary elections shall be subject to the provisions of the act, and that all primary elections for the nomination of county, district, and State offices, shall be held on the same day. Crawford & Moses' Digest, § 3757.

Another section of the act gives any candidate the right to contest the nomination by an action brought in the circuit court.

It further provides that the complaint shall be supported by the affidavit of at least ten reputable citizens and shall be filed within ten days of the certification complained of, if the complaint is against the certification in one county. Crawford & Moses' Digest, § 3772.

Montgomery filed with his complaint an affidavit signed by ten persons, the body of which is as follows:

"Comes J. V. Herring, Rafe Stegall, J. J. Lingar, Sam Harris, Dave Timmons, Ewell Love, J. F. Simmons, Jas. M. Lewis, E. E. Gifford, W. B. Cox, S. J. Morgan, and C. H. Love, ten reputable citizens of said county, and State of Arkansas, and state under oath that the statements made in the foregoing complaint are true to the best of their knowledge, information and belief."

Ferguson filed a motion to dismiss the complaint on account of the insufficiency of this supporting affidavit.

The court overruled the motion, and error is assigned to the action of the court in this regard.

We do not agree with counsel in this contention. In Logan v. Russell, 136 Ark. 217, 206 S.W. 131, the court held that under the above section the affidavits of ten reputable citizens need not be separate, but may be combined in one affidavit and made upon the belief of the affiants merely, without setting forth the facts upon which their belief is based.

The court also held that the affidavits are jurisdictional, and that the complaint and affidavits must be filed within the time specified.

In the instant case, the affidavits were filed within the time required by the statute, and under the decision just referred to the affidavit was sufficient in form. That is to say, all the affiants signed the same affidavit, and it was not necessary to state the facts upon which their support of the complaint rests.

But it is insisted that the affidavit is defective because it does not state that the affiants were members of the Democratic party, and that this was necessary under the statute. On the other hand, it is claimed that the statute does not prescribe that the affiants shall be members of the Democratic party. It is true that the statute does not so state in express terms, but we think such is the necessary implication from its language when considered with reference to the declared purpose of the statute.

In Simmons v. Terral, 145 Ark. 585, 224 S.W 977, the court had the section under consideration and held that the word, "citizens," as used in the section, is synonymous with the word, "electors." The court said that the...