Harrison v. Norton

• Decision Date: 20 May 1912
• Citation: 148 S.W. 497,104 Ark. 16
• Parties: HARRISON v. NORTON
• Court: Arkansas Supreme Court

148 S.W. 497

104 Ark. 16

HARRISON v. NORTON

Supreme Court of Arkansas

May 20, 1912

Appeal from Lincoln Chancery Court; John M. Elliott, Chancellor affirmed.

STATEMENT BY THE COURT.

At the general election held in Lincoln County on September 12 1910, the question of public road tax was submitted to the voters of Lincoln County under Amendment No. 5 to the Constitution, which provides that a road tax not exceeding three mills may be levied if a majority of the qualified electors of the county shall have voted a public road tax at the general election for State and county officers. After the returns were in from the various precincts, the election commissioners, B. F. Tarber, W. A. Echols, and E. L. Paul met on the 16th day of September, 1910, canvassed the returns, and declared the result of the election. They certified to the Secretary of State that the total number of votes cast for road tax was 533. Having finished their work they adjourned on the 26th day of September. Thereafter a letter was received by Messrs. Tarber and Echols from two of the election judges of Choctaw township, stating that the judges of that township had made an error in the count upon the subject of road tax, in that the poll book filled out and signed by them showed forty votes for and 260 votes against the road tax, when the same should be 140 for road tax and 160 against. On the 7th day of October following Tarber and Echols met at the Lincoln County Bank, where the ballots had been kept since the original canvass was made, re-examined the tallies or pencil marks on the tally sheets, and decided that the vote on the subject of road tax should be in Choctaw township 140 votes for, and 260 votes against the tax. They then went to the county clerk, and directed him to change the result on the original certificate which they had filed with the clerk so as to make it read 633 for, and 394 against road tax, instead of 533 votes for and 394 votes against, as shown by the original certificate filed with the county clerk. At the general election in Lincoln County for the year 1910 the number of the electors voting for county officers was 1093. On the first Monday in October, 1910, the levying court of Lincoln County levied a public road tax of three mills. The appellant brought this suit in the Lincoln Chancery Court alleging that the road tax imposed by the levying court and extended against the property of the plaintiffs was illegal and void for the reason, as alleged, that the number of electors voting for road tax at the general election next preceding said levy was less than a majority of the electors participating in said election, and praying that they be granted an injunction restraining the collector of Lincoln County from collecting said tax. The appellee, as sheriff and collector, answered, denying the allegations of the complaint and alleging that at the meeting of the county levying court on the first Monday in October, 1910, it found that a majority of the qualified electors of such county voted for the county public road tax of three mills at the general election held on the 12th day of September, 1910. At the hearing, B. F. Tarber, one of the county election commissioners, testified, in addition to the facts as already stated, that E. L. Paul, the other member of the board of election commissioners, was not notified of the time, place and the purpose of the meeting of himself and Echols for the purpose of recanvassing the returns of the election; that he and Echols changed the result on the subject of road tax 100 votes and changed the result from 533 for and 494 against to 633 for and 394 votes against the road tax from an examination of the tally sheets. In going over the returns, they did not count any of them. They simply used the totals in that township. The totals extended showed 40 for road tax and 260 against. "When we went to correct it, after getting the letter from the judges, we found it as above." The result of the election on the subject of road tax was correctly declared by the commissioners on the 16th of September, 1910, as shown by the poll books and tally sheets. The error, if there was an error, was made by the judges of Choctaw township, and not by the commissioners. The other commissioner, Echols, testified to substantially the same facts. He stated that, after getting the letter from the judges referred to, he and Tarber met on the 7th day of October, re-examined the tally sheets and poll books, but did not count the ballots of Choctaw township. They directed the clerk to change the general result on the subject of road tax. E. L. Paul, the other commissioner, did not know when he and Mr. Tarber were to meet and re-examine the returns, nor did he have notice of said meeting. The original poll book as sent to them from Choctaw township showed forty votes for and 260 votes against road tax. It showed the same when exhibited to them while testifying. It was not changed by them, but they had ascertained that the judges of election had made a mistake of 100 votes, as shown by the tally sheets, and so they directed the clerk to change the general result on the subject, so as to show that there had been 633 votes for, and 394 against, road tax, instead of 533 votes for road tax. There was a mistake in the total vote as extended by the judges of election, as shown by the tally sheets of 100 votes in Choctaw township.

The chancellor in his opinion found the following: "The two members of the county board of election commissioners who canvassed the returns on September 16 and who re-examined them on October 7 have identified these ballots, which remained sealed in packages and directed to the commissioners as provided by law. No question as to the genuineness of the ballots introduced in evidence has been raised. They show that 140 votes were cast for road tax and 160 against it. The tally sheets, which were identified by the two members of the board, show the same result. There are on these sheets actually 140 tallies opposite the words 'For Road Tax' and only 160 tallies opposite the words 'Against Road Tax', but when the judges came to count the tallies and put down the total they placed the number 40 opposite the vote 'For Road Tax' and 260 opposite the vote 'Against Road Tax,'" It seems to have been simply a clerical error. The court further found that "it appears from the undisputed evidence that 633 votes were cast at the election in favor of road tax and 494 against it, and that therefore a majority favored the road tax." The court held that the action of the levying court was valid, and dismissed the complaint for want of equity.

Judgment affirmed.

Caldwell & Brockman, for appellants.

1. The evidence does not support the court's finding of...