Henderson v. Gladish
| Decision Date | 08 May 1939 |
| Docket Number | No. 5487.,5487. |
| Citation | 128 S.W.2d 257 |
| Parties | HENDERSON v. GLADISH. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Mississippi County, Osceola District.
Proceeding by Doyle Henderson against S. L. Gladish to contest the nomination of the defendant to the office of county and probate judge of Mississippi county at a primary election. Judgment for contestee, and the contestant appeals.
Reversed and remanded, with directions.
W. Leon Smith and C. M. Buck, both of Blytheville, for appellant.
Taylor & Taylor, G. B. Segraves, Young & Young, and A. F. Barham, all of Osceola, and Holland & Barham, of Blytheville, for appellee.
In the democratic primary election August 9, 1938, Doyle Henderson opposed S. L. Gladish for reelection to the office of County and Probate Judge of Mississippi County.
The certified returns showed 3,550 votes to have been cast for Henderson and 3,560 for Gladish, the nomination of Gladish by a ten-vote majority having been declared.
Henderson duly contested.
The trial court found that 2,236 illegal votes had been cast: 1,091 for Gladish, and 1,145 for Henderson. In consequence of subtractions to conform to the court's findings, Henderson's net legal vote was adjudged to be 2,405, and that of Gladish 2,469, a majority of 64 for the latter.
Henderson appealed, but his bill of exceptions was not filed within the time allowed. On motion of Gladish it was stricken. We therefore determine whether errors appear on the face of the record.
One of the judgment recitals is: "The court finds that the report of the checkers, under the agreement of the parties and the instructions and findings of the court, is correct, and that [in the Wilson box there were cast] by voters otherwise qualified except that their [poll tax] receipts were filled in and signed with indelible pencil, 151 for Henderson and one for Gladish".
We first determine whether the court erred in its judgment that those who were otherwise qualified electors were deprived of that status by reason of the fact that the county collector, when he accepted payment of their poll tax within the time prescribed by law, issued receipts written with an indelible pencil, whereas Act 123 of 1935, p. 339, directs that such receipts shall be filled in and signed with pen and ink.
Appellee relies upon Martin v. Gray, 193 Ark. 32, 97 S.W.2d 439, as authority for the trial court's ruling that 152 electors ceased to be such when they failed to acquire pen-and-ink-written receipts prior to midnight June 15, 1938.
In the Martin v. Gray case receipts had been delivered June 20, 1936, without bearing the indorsement, "This poll tax issued after June 15th". Parties holding such receipts were permitted to vote. Although testimony is not quoted at length, the bill of exceptions shows that Clarence Anderson, collector for Stone county, admitted the receipts were "mostly" delivered to John B. Gower, Luther Decker, and Brady Farris. Act 123 provides that "* * * the date written on the Poll Tax receipt shall be the date of issuance." Section 4, p. 342. Purported written orders authorizing issuance of the receipts were handed to the collector about 11:30 the night of June 15 by Gower, Decker and Farris. Twenty-three of the so-called orders were, prima facie, given to Gower, twenty-six to Decker, and fifteen to Farris — a total of sixty-four. For reasons not important here, the opinion deals with only forty-six of the receipts.
The "orders" accepted by the collector were: "Mr. John B. Gower [or Decker, or Farris, as the case may have been] is authorized to pay my poll tax, and you may deliver the receipt to him".
Examples of the testimony are shown in the margin.1 Other evidence was of like quality. Farris could not be located, and the court was deprived of the benefit of his version of how the transactions were handled. The trial court (Judge S. M. Bone presiding) found that the payments were illegal. On appeal this court held mandatory that part of Act 123 which prohibits the collector from issuing poll tax receipts after midnight of June 15, unless such receipts are stamped as the Act directs. By reference to the opinion it will be found that the collector admitted having back-dated the receipts to June 15. This was a violation of the law. But the opinion goes further, and says:
While payment of a poll tax is the primary consideration from which arises the right to vote, the constitutional amendment of 1920 goes a step farther and says that such tax shall be paid "at the time of collecting taxes next preceding such election".
At most, the Martin v. Gray case only holds that the receipt evidencing payment of the tax must have been issued prior to midnight of June 15. It is not authority for the proposition that when the tax has admittedly been paid in a timely manner, and a receipt therefor has been issued by the collector at the time of payment, such payment must be perpetuated in official obscurity because of a mere irregularity in the manner of writing the receipt — an irregularity which in no sense goes to the fact of timely issuance, but only to the manner of evidencing what admittedly was done. To extend the Martin v. Gray case, and make it apply to conditions such as we are dealing with in the appeal before us, would have the effect of penalizing by disfranchisement qualified electors. They were not delinquent. They did not unreasonably procrastinate. They did not, by delay, render it impossible or even impracticable for the collector to receipt them for their payments. They were not conscious of even a technical irregularity.
Act 123, approved March 19, 1935, Acts 1935, p. 339, is entitled: "An Act to Prevent Illegal or Improper Voting in Any General or Special Legalized Election in the State of Arkansas and to Supplement the Procedure in Primary Election Contests and to Provide for the Proper Assessment and Payment of Poll Taxes in the State of Arkansas, and for Other Purposes".
Section 1 makes it unlawful "* * * for any person to cast a vote in any general or special election hereafter held in the State of Arkansas, whether the same be a legal election now or hereafter provided by law or whether the same be a general or special primary election held under the auspices of any political party in the State of Arkansas, unless the said person so casting a vote shall be a qualified elector as defined by the Constitution of Arkansas, Amendment No. 6 thereof, and Section 3736 of Crawford & Moses' Digest of the Statutes of Arkansas".2
Section 2 makes it unlawful for any person to cast a ballot "* * * unless the said person shall have previously assessed and paid a poll tax * * *."
The second paragraph of Section 4 is: .3
Section 6 provides that when an election contest has been filed by any candidate in a legalized primary election under Secs. 3772 and 3773 of Crawford & Moses' Digest, "* * * the only inquiry which can be made into the qualifications of the supporting affiants mentioned in Section 3772 of said Digest must be confined to the question as to whether or not the said persons are qualified electors and members of the party holding said primary election. * * *" The last sentence of Section 6 is: "Qualified Elector is hereby construed to mean any person who is entitled to vote in said election or has assessed and paid a poll tax as required by law".
Section 8 prescribes a penalty "* * * In the event that any person or persons shall cast a ballot in any legalized Primary Election held in this State when such person is not a qualified elector * * *."
What are the requisites of an elector?
Prior to adoption of Amendment No. 8 to the Constitution of Arkansas,4 Sec. 1 of Art. 3 of the Constitution of 1874 made every male citizen of the United States, etc., an elector. Section 2 of that Constitution guarantees that .5
By Sec. 10 of Art. 3 of the Constitution of 1874, election officers are recognized — and therefore they are constitutional officers.
Sec. 11 of Art. 3 is: "If the officers of any election shall unlawfully refuse or fail to receive, count or return the vote or ballot of any qualified elector, such vote or ballot shall nevertheless be counted upon the trial of any contest arising out of said election".
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