Glidewell v. Martin

• Decision Date: 15 June 1889
• Citation: 11 S.W. 882,51 Ark. 559
• Parties: GLIDEWELL v. MZRTIN
• Court: Arkansas Supreme Court

11 S.W. 882

51 Ark. 559

GLIDEWELL v. MZRTIN

Supreme Court of Arkansas

June 15, 1889

PETITION for Writ of Prohibition.

Writ denied.

W. L Terry, F. T. Vaughan and T. B. Martin, for petitioner.

1. The act of January 23, 1875, was never constitutionally passed. The journal affirmatively shows the second reading by title only. When the journal speaks presumptions cannot be indulged. 31 Ark. 718; 32 Id., 518; 33 Id., 25; Lawson Pres Ev., p. 569, et seq.

2. Said act, in so far as it confers jurisdiction upon the county court to try contested election cases, is unconstitutional. Art. 7, secs. 1, 11, 28, 32, 33, as construed in 34 Ark. 193 198. Sec. 52 was simply directed to the purpose of guaranteeing the eight of appeal in contested election cases. Right of appeal exists only by statute--not at common law. 14 Mass. 419; 4 Neb. 572; 11 Id., 531; 19 Id., 450. This is certainly true as to contested elections, and but for sec. 52 the legislature could have cut off the right of appeal. The implication, if any, that there may be an inferior tribunal, which it is competent to clothe with jurisdiction to try these cases, is satisfied by the court of common pleas. Art. 7, secs. 1 and 32.

An election contest is a "civil case." 36 Ark, 139, and not a "local concern." Ib., 140. If who shall fill an office is a "local concern," then 50 Ark. Wheat v. Smith, is wrong, for the jurisdiction of the county court would be exclusive.

Sec. 24, art. 19, made it simply the duty of the legislature to provide the mode of contesting elections, i. e., the manner--method of procedure, time, terms, conditions, etc. 29 Ark. 183.

In answer to the contention that the Constitution only fixed the "exclusive jurisdiction" of the county court and that it was therefore competent to confer other jurisdiction on it, see 4 Ark. 149; 7 Id., 173; Constitution, 1836, art. 6, sec. 15.

3. Said act is repealed by the act of February 5, 1875.

F.M. Fulk and Blackwood & Williams, for respondent.

1. The act is not repealed by act of February 5, 1875, because they are not on the same general subject and are not inconsistent 50 Ark. 132. Repeals by implication are not favored. 41 Ark. 149; 34 Id., 499.

2. On jurisdiction. The county court has jurisdiction. Art. 7, sec. 28; 33 Ark. 191; 43 Id., 66; 50 Id., 271; art. 19, sec. 24; art. 7, sec. 52; 32 Ark. 557. As to modes specifically provided for, see art. 6, secs. 4, 14, 23; art. 19, sec. 19. This court has certainly recognized the jurisdiction of the county court in 32 Ark. 557, and 50 Id., 271. See, also, 29 Ark. 185.

The following cases were commenced in the county court, appealed to the circuit and thence to this court: 32 Ark. 554; 39 Id., 551; 41 Id., 239.

Unless the act is plainly and beyond a reasonable doubt unconstitutional, the courts will upon hold it. 99 U.S. 718; 107 U.S. 766; 50 Pa. 150; 24 Ind. 194; 13 Mich. 483; Cooley Const. Lim., 194.

If "local concerns" is broad enough to give the legislature the right to give jurisdiction to county courts, then, if the circuit court as the "great residuum," could also be chosen as such forum, an act conferring exclusive jurisdiction on the county court would not be void, but both courts might be made separate forums. 34 Ark. 199. But if the Constitution simply made it the duty of the legislature to provide some board, * * * * tribunal before which contests should be had, when that was done it became exclusive. Cases supra, and 29 Ark. 186; 15 Oh. St., 114.

3. On the passage of the law. 33 Ark. 17; 28 Id., 320; 44 Id., 536; 40 Id., 208; 95 Ill. 183; 2 Minn. 337; 10 Nev. 176; Cooley Const. Lim., 164.

Compton & Oompton and Samuel R. Allen, Amici Curiae.

1. The act is Constitutional and valid. The jurisdiction given is nowhere in the Constitution expressly prohibited, nor even impliedly. On the contrary, the Constitution expressly directs the legislature to provide for the mode of contesting elections. Art. 6, sec. 4; art. 19, sec. 24; art. 7, sec. 52; art. 7, sec. 28; art. 7, sec. 11.

When jurisdiction in contested elections is conferred upon a particular tribunal, it is exclusive. 28 Ark. 129; 29 Id., 173. Considering this principle in connection with sec. 24, art. 19; sec. 28, art. 7, and sec. 11, art. 7, it. follows: The jurisdiction conferred by the act, pursuant to sec. 24, art. 19, is exclusive. It is the same as if written in the Constitution itself. 15 Oh. St., 114, and the jurisdiction so vested does not belong to that residuum conferred on circuit courts by sec. 11. art. 7.

The framers of the Constitution evidently contemplated that the legislature, under sec. 24, art. 19, might confer jurisdiction, as to county and township officers, on a tribunal inferior to the circuit court, for, by sec. 52, art. 7, an appeal is expressly provided for, which would be without meaning and inoperative if they intended that the circuit court should have original jurisdiction in such cases.

Sec. 24, art. 19, does not relate only to the mode of procedure, but also to the tribunal, and this is manifest from the clause: "In cases not specifically provided for in this Constitution," which necessarily refers to sec. 4, art. 6.

2. It needs no argument to show that the act was not repealed by act of February, 1875.

3. The legal presumption is that the act of January 23, 1875, was passed in accordance with the requirements of the Constitution, notwithstanding the journal of the senate shows that a motion was made and adopted to read the bill a second time by title. The journal does not affirmatively show that it was so read, but is silent as to whether it was, in fact, read in any way; and this silence warrants the presumption that the bill was read according to the requirements of the Constitution. 40 Ark. 200; 44 Id., 536; 27 Id., 278; 42 Tex. 641; 3 Oh. St., 475; 11 Ind. 424.

To uphold the act, this court will presume that the senate receded from its motion to read by title. 40 Ark. 213, 214.

OPINION

SANDELS, J.

Petitioner H. E. Glidewell, alleges that the circuit court of Pulaski county is proceeding in a matter beyond its jurisdiction; that it is about to try and determine upon an appeal from the county court of Pulaski county, an election contest for the office of county treasurer of Pulaski county, brought against petitioner by one T. H. Jones, under the pretended authority of the pretended act of the legislature of Arkansas, entitled: "An act providing a general election law," approved January 23, 1875.

The circuit judge responds and demurs to the petition. From the petition (the statements of fact being conceded by the demurrer) and from the journals of the senate and house of representatives of the general assembly the following matters appear:

Glidewell holds the office of county treasurer. Jones began a contest for the office in the Pulaski county court; Glidewell objecting.

The contest was tried and an appeal was taken to the circuit court. Petitioner moved to dismiss, because the county court having no jurisdiction, the circuit court acquired none on appeal.

The circuit court overruled said motion and ordered that the trial proceed.

By the journal of the senate, it appears that the act of January 23, 1875, was introduced in the senate as senate bill, No. 54, on November 27, 1874, when it was read the first time. The journal thereupon says: "Senator Hicks moved a suspension of the rules, and the reading of the bill a second time by title. Adopted."

"Senator Hicks then moved that the bill be referred to committee on elections, and that 240 copies be printed. Carried."

On December 16, 1874, the journal shows:

"Mr. Hicks, under the regular order of business, moved that senate bill No. 54, an act providing a general election law, be read a third time, and placed on its final passage, which was adopted."

"The question being put: 'Shall the bill pass?' it was decided in the affirmative. Yeas, 24. Nays, none. Not voting, 7. So the bill was passed." The yeas and nays are entered on the journal. The act was approved January 23, 1875.

Section 71 of said act, being section 2722 of Mansfield's Digest, is as follows:

"When the election of any clerk of the circuit court, sheriff, coroner, county surveyor, county treasurer, county assessor, justice of the peace, constable, or any other county or township officer, the contest of which is not otherwise provided for, shall be contested, it shall be before the county court, and the person contesting," etc.

Petitioner presents three objections to the jurisdiction of said circuit court, viz:

1st. Said general election law was never constitutionally passed in this, that it was never read at length three times in the senate.

2nd. That if said act was ever legally passed, it was repealed by the act of February 5, 1875, entitled: "An act fixing the regular terms for holding the county courts of the State, and for fixing the salaries of the county judges, and the per diem pay of the associate justices of the several counties of this State."

3rd. That the legislature had no constitutional power to confer jurisdiction upon the county courts to try election contests.

We will consider the questions in their order:

1. Sec. 22, art. 5, of the Constitution (1874) is as follows:

"Every bill shall be read at length on three different days, in each house, unless the rules be suspended by two-thirds of the house, when the same may be read a second or a third time on the same day; and no bill shall become a law unless on its final passage, the vote be taken by yeas and nays; the names of the persons voting for and against the same be entered on the journal and a majority of each house be recorded thereon as voting in its favor."

This is the only requirement as to what shall go upon the...