Henry v. Stuart, 5--5760
| Decision Date | 15 November 1971 |
| Docket Number | No. 5--5760,5--5760 |
| Citation | 473 S.W.2d 165,251 Ark. 415 |
| Parties | E. R. HENRY, Jr., et al., Appellants, v. C. C. STUART et al., Appellees. |
| Court | Arkansas Supreme Court |
Dickey, Dickey & Drake, Pine Bluff, for appellants.
Gill & Clayton, Dumas, for appellees.
E. R. Henry, Jr. and the other named appellants filed a taxpayers' suit in the Desha County Circuit Court against C. C. Stuart and other members of the Desha County Board of Election Commissioners seeking to contest the vote by which a school millage tax increase for the erection of a school building was adopted at an election held within the boundaries of the Dumas Special School District on March 19, 1971. The complaint alleges that the district lies in Lincoln County as well as in Desha County, but that its administrative office is in Desha County.
The Commissioners demurred to the complaint for defect in parties in that the members of the Desha County Board of Election Commissioners were not proper parties to the action, and on the alternative ground that the complaint did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer on both grounds and the original plaintiffs as appellants here, rely on the following points for reversal:
'The court erred in finding that the Desha County Election Commissioners were not proper parties to this suit.
The court erred in finding that the complaint did not state a cause of action.
The election laws violated were necessary for a free and intelligent casting of the vote and the court clearly erred in dismissing the appellant's prayer for a recount.'
Having reached the conclusion that the trial court was correct in sustaining the demurrer for defect in parties, we do not reach the appellants' second and third points.
Under the alleged irregularities set out in the complaint, the integrity of the 'Mitchellville Box' was challenged for the reason that two election judges expressed preference for the measure voted upon throughout the day of the election, and that in this same box one Rozener Malone was allowed to vote without appearing at the polling place. The integrity of the 'Library Box (Dumas Box 1--A)' was challenged on the ground that no duplicate copy of the voters list was posted outside the polling place as required by law, and that after the ballot envelope was sealed, an election official from this polling place opened the envelope without the authority of a court order. The complaint alleged that there were three other boxes where the total of votes cast in the election did not total the number of voters who registered to vote on said date, and that there were no canceled ballots received separately from the other ballots and turned over to the election commissioners to explain the differences. The complaint alleged that in the polling place called 'Lee's Washateria and Dumas Library,' the voters list did not include the addresses of the voters, thereby preventing a determination of whether the 715 voters lived outside the polling place jurisdiction, and that in the 'Pickins Box' the addresses of four voters reflected that they lived outside the precinct where they voted, thereby rendering the votes invalid.
The answer to the question presented under the appellants' first point calls for a determination of the proper parties defendant in a suit of this nature. We are cited no statutory provision as a direct answer to the question and, following our own research, we conclude that there is none. The cases cited by the appellants are of no assistance for they either turn on facts different from those in the case at bar, or they do not reach the question now before us.
The case of Phillips v. Melton, 222 Ark. 162, 257 S.W.2d 931, cited by the appellants, involved a contest for the office of school director, and while the election commissioners were joined as parties defendant along with the certified candidate, the question of whether the commissioners were proper or necessary parties was not raised and that issue was not involved.
In County Board of Election Commissioners of Lonoke County v. Waggoner, 190 Ark. 341, 78 S.W.2d 821, cited by the appellants, the vote by which a three mill road tax was defeated was the subject of the contest, and whether the circuit court or the county court had jurisdiction was the question involved. Following a recount of the votes in that case, the election commissioners certified that a majority had voted against the road tax and the county judge filed a taxpayers suit against the board of election commissioners charging fraudulent practice in the holding of the election and seeking to contest the election on the question of the road tax. The judge of the Lonoke County Circuit Court issued an order impounding the ballots, poll books and other election supplies and restraining the commissioners from certifying the results of the election on the question of the road tax. It was discovered, however, that the results of the election had already been certified before the restraining order was served on the commissioners. The county board of election commissioners then filed a motion to dismiss the complaint seeking to contest the election not on the grounds that they were improper parties to the suit, but on the grounds that the circuit court was without jurisdiction. The motion was overruled by the trial court and the matter reached this court on a petition for a writ of prohibition filed by the commissioners to prohibit the Lonoke Circuit Court from proceeding in the matter and contending that exclusive jurisdiction of the cause was in the Lonoke County Court. So the question presented in that case was whether the county court or the circuit court had jurisdiction of election contests involving county road tax, and the question of whether the election commissioners were proper parties was never raised and was not involved.
The appellants cite Gregory v. Gordon, 243 Ark. 635, 420 S.W.2d 825, in which the election commissioners were proper parties defendant but the question of proper parties was not raised or answered in that case. In Gregory the suit was brought by property owners against the election commissioners to void an entire election as to a public...
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Rubens v. Hodges
...from an action seeking to void an election, we have said the election commission is not the proper party defendant, Henry v. Stuart, 251 Ark. 415, 473 S.W.2d 165 (1971), although it is a proper nominal defendant. The reason is the commission's function is to promote fair elections, to act i......
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