Freeman v. Lazarus

• Decision Date: 02 November 1895
• Citation: 32 S.W. 680
• Parties: FREEMAN et al. v. LAZARUS et al.
• Court: Arkansas Supreme Court

32 S.W. 680

FREEMAN et al. v. LAZARUS et al.

Supreme Court of Arkansas.

November 2, 1895.

Appeal from circuit court, Ouachita county; Charles W. Smith, Judge.

Application by Lazarus & Levy for a license to sell liquors, in which it was alleged that there was a fraudulent return of an election held on the license question, and asking that the court inquire into its validity. J. A. Freeman and other citizens came in, and asked and obtained leave to become parties defendant, and resisted the petition. The county court decided adversely for defendants, and they appealed to the circuit court, where there was a trial de novo, resulting in a judgment for petitioners. From this, defendants appeal. Affirmed.

This was a contest before the county court of Ouachita county to determine whether a majority of the votes cast in said county at the election in September, 1894, were cast for license or against license. It was begun by the appellees, Lazarus & Levy, who filed an application for license, alleging that a majority of the qualified electors voting at said election had voted for license, but that, through the willful misconduct of the judges of said election in Bragg township in said county, the ballots cast in that township had been prepared so as to show a different result. They asked that the court inquire into the election in said township, and declare that a majority of the votes cast in said county were cast for license. After the filing of the petition by Lazarus & Levy, the appellants, J. A. Freeman and other citizens of that county, came in, and asked and obtained leave to become parties defendant, and resisted the petition of appellees. The county court found, in favor of petitioners, that a majority of the votes cast were for license, and an appeal was taken to the circuit court. On the trial de novo in the circuit court, the returns of the election were introduced, and showed that the vote of the county, excluding Bragg township, was 945 for license, and 929 against license, — a majority of 16 for license. The returns from Bragg township showed 12 votes for license, and 99 against license. The other facts sufficiently appear in the opinion. After hearing all the evidence, the circuit court found that "by reason of fraud practiced by the judges of the election held on the first Monday in September, 1894, in Bragg township, Ouachita county, Arkansas, the returns of said election prepared and certified by them were unreliable and worthless, and that the court was unable to determine the true vote of the qualified electors of said township upon the question of for license or against license. The court therefore cast out and rejected the returns from said township, and found that, excluding Bragg township, the vote in the remainder of the county of Ouachita stood 16 majority for license, and gave judgment accordingly.

Thornton & Thornton and Met. L. Jones, for appellants. Smead & Powell and F. J. Gaughan, for appellees.

RIDDICK, J.

The first contention of the appellants is that the county court had no right to hear and decide a contest concerning the result of an election upon the question of granting or refusing liquor license. The object in holding such an election is to determine whether or not the county court may grant such license in the county where the election is held. The statute directs that all returns from such elections "shall be sealed up and forwarded to the clerk of the proper county, and by him laid before the county court. * * * If at such election the majority of the votes cast in any county upon the question be not `For license,' then it shall be unlawful for the county court of such county to grant license. * * * But if a majority of the votes cast in any county upon the question be `For license,' then it shall be lawful for the county court of such county to grant license," etc. Sand. & H. Dig. §§ 4868, 4869. Under this statute, it is the duty of the county court, before granting license for the sale of liquor, to determine whether a majority of the votes of the county have been cast for or against license. This, we think, gives that court the power, in a proper proceeding, to inquire whether the vote has been fairly taken, and, if fraud be shown, the right to purge the polls. It is now well settled that the county courts of this state have the right to determine contests concerning the result of elections for the location or removal of county seats, on the ground that it is a matter of local concern, over which the county courts have jurisdiction. The issuance of license to sell liquors is a matter of local concern, as much so as the removal of a county seat; and the circuit court correctly held that the jurisdiction to determine a contest of the vote upon the question of liquor license is in the county court. Russell v. Jackoway, 33 Ark. 191; Williford v. State, 43 Ark. 62; Const. 1874, art. 7, § 21; Glidewell v. Martin, 51 Ark. 559, 11 S. W. 882.

It is also contended that the recount of the votes of Bragg township by the election commissioners is conclusive upon appellees, and precludes a contest of the election in the courts; but we hold that it is not so. The commissioners, in making this recount, had only the power the judges of the election had in the first instance. Their findings, while conclusive in collateral proceedings, and prima facie evidence when directly assailed, may yet be inquired into and corrected by proper proceedings in the courts. Cooley, Const. Lim. (6th Ed.) 788; Sand. & H. Dig. § 2670.

Neither do we think that the appellants can rightly object to want of notice. They came forward of their own motion, were made parties defendant, and allowed to respond to and resist the petition of appellees. As every citizen of the county was interested in the question at issue, and as it was impracticable to bring all of them before the court, the appellants were properly allowed to appear and defend for all. Sand. & H. Dig. § 5632. But, having thus voluntarily appeared, they could not afterwards be allowed to say they had no notice. Railway Co. v. Barnes, 35 Ark. 97; Murphy v. Williams, 1 Ark. 384, and note to annotated edition.

Before hearing the cause on appeal, the circuit court granted leave to the contestants to make certain amendments to their petition. It is asserted that this was beyond its power; but we do not think so. The circuit court, on appeals from the county courts or other courts, may permit amendments to be made to the petition or statement of the plaintiff's cause of action so as to make it more definite and certain, provided that such amendment does not change the cause of action. Such amendments are within the discretion of the circuit court, and no abuse of that discretion has been shown in this case. Railway Co. v. Lindsay, 55 Ark. 282, 18 S. W. 59.

After hearing the evidence, the circuit court found that, by reason of fraud practiced by the judges of said election in Bragg township, of Ouachita county, the returns of the election prepared and certified by them were unreliable and worthless, and that the court was unable to determine from the evidence the true vote of said township upon the question of license. Before considering the evidence bearing on this point, we will notice the statute under which the election was held. The act of March 4, 1891, entitled "An act to regulate elections in the state of Arkansas," was an effort on the part of the legislature to protect the voter against undue influences of all kinds at the polls, and to secure, through the...