Files v. Hill, 79-254

• Decision Date: 25 February 1980
• Docket Number: No. 79-254,79-254
• Citation: 268 Ark. 106,594 S.W.2d 836
• Parties: Jack FILES, Appellant, v. Woodrow HILL et al., Appellees. T. K. ARNOLD, III, as an Individual and as a Class Representative, Appellant, v. STATE BOARD OF ELECTION COMMISSIONERS et al., Appellees.
• Court: Arkansas Supreme Court

Page 836

594 S.W.2d 836

268 Ark. 106

Jack FILES, Appellant, v. Woodrow HILL et al., Appellees.

T. K. ARNOLD, III, as an Individual and as a Class Representative, Appellant, v. STATE BOARD OF ELECTION COMMISSIONERS et al., Appellees.

No. 79-254.

Supreme Court of Arkansas.

Feb. 25, 1980.

Rehearing Denied March 31, 1980.

Wright, Lindsey & Jennings, Little Rock, for appellant.

Philip K. Lyon, Donald H. Henry, Steve Clark, Atty. Gen. by David L. Williams, Asst. Atty. Gen., Little Rock, for appellees.

FOGLEMAN, Chief Justice.

This case involves appeals in two cases which were consolidated for trial because both involved issues arising from the election of a chancellor for Position 1 in Judicial District 6 at the general election held on November 7, 1978. Jack Files filed the first one against Lee Munson, who was certified as the successful candidate, and the Perry County and Pulaski County Boards of Election Commissioners. Files asked that the votes in the election be recounted and that he be declared the winner of the election or that the election be set aside. The second was a suit brought by T. K. Arnold, III, a voter in the general election, as a class action for a declaratory judgment that the certification of the results of the election were null and void and for writs of mandamus to restrain the Secretary of State from canvassing the election returns and the Governor from issuing a commission to Munson, and to require the Pulaski County Board of Election Commissioners to conduct a new election for the office. In the alternative Arnold asked that the office be declared vacant and filled under Amendment 29, § 1 of the Constitution of Arkansas.

The trial court sustained general demurrers in both cases and dismissed the complaints. We agree that neither complaint stated a cause of action and affirm.

Files made the following allegations in his amended and substituted complaint:

Munson was the Democratic candidate and Files a duly qualified write-in candidate for Chancellor of District 6, Position 1. The Perry County Board of Election Commissioners certified the results showing that Munson received 1,246 votes and Files 331 votes on the day after the election and Files did not have an opportunity to demand a recount prior to the certification. Files alleged that ballots properly cast for him in Perry County were not counted and that the action of the board and the election officials constituted fraud. The Pulaski County Board of Election Commissioners recounted the votes in Pulaski County at Files' request, and certified that Munson had received 23,320 votes and Files 22,504 votes. Files actually received 609 votes that the Pulaski County Board refused to count so that the total vote actually cast for Files was 23,113. Files had received reports from hundreds of voters complaining about the manner in which the election was conducted in Pulaski County. The following is a list of some of the problems that prevented electors from casting their ballots in favor of Files:

A. Instructions concerning write-in votes were not sufficiently clear.

B. Pencils were not furnished for the convenience of voters.

C. Voting machines did not function properly and it was impossible for many voters to cast a write-in vote for plaintiff Files.

D. Voters were instructed that long lines waiting at the polls were caused by write-in voters and that electors could vote more quickly by using machines that were not functioning to accept write-in votes.

E. Instructions for voting for write-in candidate Files were given by election officials, resulting in ballots not being counted although the instructions were followed.

F. Electors, attempting to vote for plaintiff Files and following instructions of election officials, wrote plaintiff's name on masking tape, and on parts of the voting machine in an effort to cast votes for plaintiff Files, with the result that said votes were not counted.

G. In some instances it was physically impossible for a voter to cast his ballot for plaintiff Files on a voting machine.

A total of 1,522 persons who were registered voters in Pulaski County either advised Files by telephone, or in writing, or executed affidavits attesting that, although they were present at the polling places making every reasonable effort to cast a ballot for Files, they were unable to do so. If all the electors desiring to do so, and presenting themselves at the polls had been permitted to cast ballots for Files and if all such ballots were counted, Files would have been declared elected.

During election day, Files made a complaint to the Pulaski County Board of Election Commissioners and requested, pursuant to Ark.Stat.Ann. § 3-1231 (Repl.1976), that paper ballots be made available in order that electors might vote, but the request was refused.

Because of all the irregularities in the election which prevented Files from being elected chancellor, in the event the court believes it is unable to declare Files the winner of the election, another election ought to be held in Pulaski County, or, because so many electors were denied their constitutional rights under Art. 3, § 2 of the Constitution of Arkansas to participate in a free and equal election, the result of the election is uncertain, and it is impossible to determine who would have been selected in a free election.

Munson filed an answer, demurrer and motion to strike. He denied that the suit was properly instituted in accordance with Ark.Stat.Ann. § 3-1001 et seq. (Repl.1976) in that: the complaint was not properly verified by affidavit, and the plaintiff did not list the names of persons who actually cast ballots for Files which were not counted; the court was without jurisdiction to grant any of the relief requested due to defects in the complaint; and the complaint did not state facts sufficient to constitute a cause of action for the relief sought.

Before taking up the propriety of the trial court's action on the demurrer, we point out that we consider the allegations appearing on the face of the complaint only. Spaulding Mfg. Co. v. Chaudoin, 87 Ark. 418, 112 S.W. 1087. A demurrer does not admit any facts that are not well pleaded. Potter v. Citty, 257 Ark. 276, 516 S.W.2d 597; Palmer v. Cline, 254 Ark. 393, 494 S.W.2d 112; Caldwell v. St. Louis Joint Stock Land Bank, 187 Ark. 832, 62 S.W.2d 39. See also, Rich v. Walker, 237 Ark. 586, 374 S.W.2d 476; United Interchange, Inc. v. Rowe, 230 Ark. 905, 327 S.W.2d 547; Wilburn v. Moon, 202 Ark. 899, 154 S.W.2d 7. Legal conclusions are not admitted by demurrer. May v. Ryder Truck Rental, Inc., 264 Ark. 751, 574 S.W.2d 264; United Interchange Inc. v. Rowe, supra; Seubold v. Fort Smith Special School District, 218 Ark. 560, 237 S.W.2d 884; Main v. Drainage District No. 2, 204 Ark. 506, 162 S.W.2d 901; Wilburn v. Moon, supra. A hearing, at which evidence was introduced, was held, according to an opening statement by Files' attorney, to familiarize the court with the nature of plaintiff's complaint and the operation of voting machines, but Files agreed that proceeding with the hearing did not constitute a waiver of the demurrer of the defendants. None of the evidence produced at this hearing can be considered on this appeal. ¹ Hoggard & Sons Enterprises, Inc. v. Russell Burial Ass'n, 255 Ark. 576, 501 S.W.2d 613.

In considering whether Files stated a cause of action, it must be remembered that election contests are governed entirely by statute. See Reed v. Baker, 254 Ark. 631, 495 S.W.2d 849. The statement of generalities and conclusions of law is not sufficient to state a cause of action. Jones v. Etheridge, 242 Ark. 907, 416 S.W.2d 306. A pleading which merely alleges the conclusion that the contestant received more legal votes than the contestee without alleging facts which would disclose that the result of the election was actually different from that shown by the returns does not state a cause of action. Hill v. Williams, 165 Ark. 421, 264 S.W. 964; Robinson v. Knowlton, 183 Ark. 1127, 40 S.W.2d 450.

When the complaint of Files is stripped of generalities and conclusions, the remaining allegations fail to show that the result of the election should have actually been different. The returns showed that, in the two counties, Munson received a total of 24,566 votes and Files, a total of 22,835. The difference amounted to 1,731. Assuming, but not deciding, that the votes of the 1,522 persons named who said they offered to vote for Files but were unable to do so were counted as legal votes, Munson would still have 209 more votes than Files. The question then turns upon the only other allegation made as to any specific number of votes. This allegation was:

The Pulaski County Board of Election Commissioners has recounted the votes in Pulaski County, at the request of the plaintiff, and has now certified the results as official on Tuesday, November 13, 1978, declaring that Lee Munson had received 23,320 votes and Jack Files had received 22,504 votes. The plaintiff, Jack Files, actually received 609 votes that the Pulaski County Board of Election Commissioners refused to count for him, so that the total vote actually cast for Jack Files was 23,113.

Nowhere in the complaint were the 609 votes or voters identified in any manner. There was not even any suggestion as to the precinct or precincts in which these votes were cast. The statement of this conclusion without any identification of either the vote or the voters is not a sufficient factual allegation to state a cause of action. See Jones v. Etheridge, supra; McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542; Crawford v. Harmon, 149 Ark. 343, 232 S.W. 427.

There are no allegations in the complaint that bring this case within the purview of Govan v. Jackson, 32 Ark. 553, where the judges in one precinct had failed to canvass the returns of one box, or Dixon v. Orr, 49 Ark. 238, 4 S.W. 774, where the ballots had been counted in a particular precinct, but the...