Glover v. Russell, 76--312

• Decision Date: 08 November 1976
• Docket Number: No. 76--312,76--312
• Citation: 542 S.W.2d 751,260 Ark. 609
• Parties: G. L. GLOVER et al., Appellants, v. Maxine RUSSELL et al., Appellees.
• Court: Arkansas Supreme Court

Page 751

542 S.W.2d 751

260 Ark. 609

G. L. GLOVER et al., Appellants, v. Maxine RUSSELL et al., Appellees.

No. 76--312.

Supreme Court of Arkansas, In Banc.

Nov. 8, 1976.

Lee A. Munson, Pros. Atty., by William H. Trice, III, Little Rock, for appellants.

John T. Harmon, North Little Rock, for appellees.

BYRD, Justice.

This election litigation arises as a result of a local option petition filed with the Pulaski County Clerk on September 8, 1976, for a wet or dry election in Precinct 180A at the general election to be held on November 2, 1976. The Special Chancellor invalidated the petitions because they were not filed more than 60 days before the election. Appellants G. L. Glover, Sharon Cissell and Dr. Joel Anderson, as members of the Board of Election Commissioners of Pulaski County and Charles F. Jackson as Clerk of Pulaski County appeal contending that there is no mandatory filing deadline for local option petitions filed pursuant to Ark.Stat.Ann. § 48--801. Appellees Maxine Russell, Russell's Liquor Inc., M. C. Garrison and N. G. Mitchell cross-appeal contending that the Special Chancellor erred in holding that Precinct 180A was a valid, legal and established precinct of Pulaski County.

Both the appellants and appellees recognize that a local option election is not an initiative petition under the initiative and referendum provisions of Amendment No. 7 to the Arkansas Constitution. Yet both the appellants and appellees rely upon dictum from our decision in Armstrong v. Sturch, 235 Ark. 571, 361 S.W.2d 77 (1962), to support their respective positions on the direct appeal issue. The sole issue involved in Armstrong v. Sturch, supra, was whether local option petitions filed on July 23, 1962, prior to the general election on November 6, 1962, had been filed too early. In construing Acts 1955, No. 15, we held that the petitions had been filed within the time prescribed by law. Here, however, the issue on the direct appeal is whether the petitions filed on September 8, 1976, were filed too late for the general election to be held 55 days later on November 2, 1976.

To understand how this problem arises, we must first consider Init. Meas. 1942, No 1, § 1, Acts 1943 (Ark.Stat.Ann. § 48--801 (Repl. 1964)), which permitted 15% of the qualified voters to petition the county court for a wet or dry election. That act required the county court to hold a public hearing within 10 days to determine the sufficiency of the petitions. That provision directed the county court to order a special election not earlier than 20 days nor later than 30 days following the public hearing. Provision was also made for the time of taking an appeal from the county court to the circuit court, Ark.Stat.Ann. § 48--804.

After some experience with the provision for special local option elections, the General Assembly by a two-thirds vote adopted Acts 1955, No. 15 (Ark.Stat.Ann. §§ 48--824 and 48--825 (Repl. 1964)). Section 1, thereof, reqrired local option elections to be held only on the regular biennial November general election days. Section 2 of the Acts 1955, No. 15 (Ark.Stat.Ann. § 48--825) provides:

'Every petition for a local option election shall be prepared in accordance with Initiated Act No. 1 of 1942, and it shall be filed, and the subsequent proceedings thereupon shall be had and conducted, in the manner provided for county initiative measures by Initiative and Referendum Amendment No. 7 to the Constitution of Arkansas and enabling acts pertaining thereto.' (Emphasis ours).

The time table for the filing and processing of petitions on county initiative measures is controlled by Amendment No. 7, to the Constitution of Arkansas and the enabling legislation pertaining thereto, Acts 1935, No. 4 (Ark.Stat.Ann. §§ 2--301--2--314 (Repl. 1976)). Amendment No. 7 provides that '. . . In municipalities and counties the time for filing an initiative petition shall not be fixed at less then sixty days . . . before the election at which it is to be voted upon.' After the filing of the petitions Ark.Stat.Ann. § 2--303 gives the county clerk 10 days to certify the sufficiency or insufficiency of the petitions. If the clerk certifies the petitions insufficient, the petitioners pursuant to Ark.Stat.Ann. § 2--309 are given 10 days to obtain additional signatures or to submit proof to the clerk on rejected signatures and the clerk thereafter has another 5 days to certify as to the sufficiency or insufficiency of the petitions. Ark.Stat.Ann. § 2--310 thereafter gives to any taxpayer 15 days to petition the chancery court for review of the clerk's certification. Ark.Stat.Ann. § 2--311 then requires the chancery court to hold a hearing within 10 days. When viewed from the perspective of handling the requirements for certifying and contesting...