Graves v. McConnell

• Decision Date: 28 January 1924
• Docket Number: 118
• Citation: 257 S.W. 1041,162 Ark. 167
• Parties: GRAVES v. MCCONNELL
• Court: Arkansas Supreme Court

257 S.W. 1041

162 Ark. 167

GRAVES v. MCCONNELL

No. 118

Supreme Court of Arkansas

January 28, 1924

Appeal from Howard Circuit Court; B. E. Isbell, Judge; affirmed.

Judgment affirmed.

W P. Feazel, for appellant.

1. The court erred in holding that, under 6 of the act, no part of it went into effect until ninety days after its approval. Having the emergency clause attached, it became a valid law and effective for the purpose of holding the election from the time it was approved by the Governor. 109 Ark. 479. See § 5 of the act. On construction of statute, see 135 Ark 462; 94 Ark. 422; 133 Ark. 491; Summers v. Road Imp. Dist. 16, 160 Ark. 371. The intent of the Legislature as to when an act shall become effective is controlling, and, when ascertained, it is the duty of the courts to give effect to it. Miller v Witcher, 160 Ark. 479.

2. The county judge and board of election commissioners are estopped from defending on the ground that the election was held without authority. 76 Ark. 48.

3. The commissioners were ministerial officers merely, and had no discretion to take testimony as to the number of electors in the district. Their plain duty was to certify the results as shown by the returns. McCrary on Elections, § 81-5. The provision that the act should not become effective "until it has first been approved by a majority of the qualified electors residing in said district" does not mean a majority of those who actually reside in the district, but a majority of those voting on the question at the election. 45 Ark. 400; 153 Ark. 313.

4. Certiorari and mandamus the proper remedy. C. & M. Digest, § 2237; 126 Ark. 125; 153 Ark. 50; McCrary on Elections,331.

J. W. Bishop, for appellees.

1. The legislative intent was that the act as a whole should receive a majority of votes of the qualified electors residing in the district in its favor before it became operative. Sections 2, 5 and 6; 157 Ark. 186; 145 Ark. 144, 147.

2. Certiorari will not lie to correct ministerial acts. 158 Ark. 437; 157 Ark. 186; Tilghman v. Russell, 158 Ark. 593.

3. Mandamus will not lie to control the discretion of a court or judge or other functionary, but will be granted only to compel him to act when he refuses to do so. 103 Ark. 504; 26 Cyc. 159; 18 A. L. R. 233; 48 Ark. 384; 56 Ark. 113; 59 Ark. 330; 66 Ark. 579; 78 Ark. 462; 80 Ark. 337; 83 Ark. 598; 84 Ark. 394; 92 Ark. 4; 109 Ark. 491.

4. If the referendum governs, then no election could be held until ninety days after the adjournment of the Legislature. 103 Ark. 57.

OPINION

WOOD, J.

Act No. 534 of the Acts of 1923 provides for a special stock law in certain parts of Howard County, Arkansas, known as the "no-fence district." Sections 1, 2, 3 and 4 contain provisions as to the manner of creating the district and the duties of owners of stock with reference thereto, and the penalty for failure to comply with the provisions thereof.

Section 5 of the act, among other things, provides: "No provision of this act shall become effective until it has first been approved by a majority of the qualified electors residing in said described district, at a special election to be held and decide the question. Said election shall be called by the county judge of said county, by publishing proclamation, to be printed for four weeks in all newspapers which have a general circulation in said territory * * *. Such special election shall be held on any date before the first day of August, 1923, etc. * * * Upon the county board of election commissioners issuing their proclamation, attested by the county judge and county clerk, that a majority of said qualified voters voted in favor of this act, then and thereupon it shall be in force and effect from date; otherwise it shall be null and void."

Section 6 provides: "That all laws and parts of laws in conflict herewith are hereby repealed, and this act, being necessary for the immediate preservation of the public peace, health and safety, shall take effect and be in force 90 days after its passage."

The county judge called the election provided for in § 5, fixing May 5, 1923, as the day the law should be voted upon. The election was held on that day, and, as shown by the certificates of the election commissioners, there were 1,450 votes cast, 760 of the qualified electors voting for the law and 688 voting against it. The proclamation was duly issued, attested by the county judge and the county clerk. The commissioners, upon evidence adduced before them tending to prove there were 2,250 qualified electors residing within the district, proclaimed that the law had not received a majority of such electors, and therefore the law had not become effective. The appellants, by certiorari issued out of the circuit court, sought to have the action of the election commissioners and the county judge reviewed, and, if they had erred, to compel them by mandamus to proclaim that the law had been put in effect by such election. The election officers joined issue on the allegations of the petition for certiorari, and, at the hearing, the trial court held that the election called on March 19, and held on May 25, 1923, was prematurely called and prematurely held, for the reason that what purports to be the emergency clause attached to said act provides that the same shall not take effect and be in force until ninety days after its passage, and that the law was not effective for any purpose until ninety days after March 21, 1923, or until June 21, 1923, and therefore said election was called and held before the law went into effect.

In construing a statute it is the duty of the court to construe it as a whole and give some meaning to every word, if possible, and, in order to effectuate the intent of the Legislature, the court may eliminate or correct errors in a statute, or reject certain words and substitute others, when, by so doing, it only reconciles apparent inconsistencies of language, and, on the whole, accomplishes the purpose which the Legislature had in mind in the enactment of the law. Garland Power Co. v. State Board, 94 Ark. 422, 127 S.W. 454; Rayder v. Warrick, 133 Ark. 491, 202 S.W. 831; Kindricks v. Machin, 135 Ark. 459, 205 S.W. 815; Summers v. Road Imp. Dist., 160 Ark. 371, 254 S.W. 696.

Now, the language, "such special election shall be held on any date before the first day of August, 1923," is so plain that it does not admit of any construction. The appellees contend that the only way this language can be reconciled with § 6 of the act and carry out the intention of the Legislature is to amend it so as to read as follows: "Such special election shall be held on any date (after ninety days) but before the first day of August, 1923," adding the words inclosed in the brackets. But it occurs to us that the Legislature did not intend to postpone the election to determine whether the act should become effective beyond the expiration of ninety days after the act was approved by the Governor. The act contains the emergency clause, and therefore was not subject to the referendum. Ark. Tax Com. v. Moore, 103 Ark. 48, 145 S.W. 199; Hanson v. Hodges, 109 Ark. 479, 160 S.W. 392. It was therefore clearly the intention of the Legislature that this law should become effective, so far as the holding of the election was concerned, before the expiration of ninety days after the final adjournment of the Legislature.

We think it is equally clear that the Legislature intended that the election to determine whether the act should become effective should be held before the first day of August, 1923, as the act plainly declares. The meaning of the act is simply this: The qualified electors, under the act, had the right to hold an election on any date between the time of the approval of the act by the Governor until the first day of August, 1923, to determine, by the election held in the manner prescribed by the act, whether the act should become effective, and, if the election were held and it was decided by the majority of the qualified electors residing within the district voting upon the subject that the provisions of the law should be put in force, then the remedial provisions of the act were in force, beginning at a period ninety days after the act was approved by the Governor.

The act under review here is not like the act that was under consideration in the case of Gaster v Dermott-Collins Road Dist., 156 Ark. 507, 248 S.W. 2, where we held that an act without an emergency clause does not become operative until ninety days after the adjournment of the Legislature. There the election could not be held at all until after the expiration of the ninety-day period from the...