Lanier v. Norfleet
| Decision Date | 11 December 1922 |
| Docket Number | (No. 40.) |
| Citation | 245 S.W. 498 |
| Parties | LANIER v. NORFLEET. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Crittenden County; W. W. Bandy, Judge.
Action by W. J. Lanier against M. B. Norfleet, Sr. On defendant's motion the case was dismissed, and plaintiff appeals. Affirmed.
On the 28th day of August, 1922, W. J. Lanier instituted an action against M. B. Norfleet, Sr., in the Crittenden circuit court to contest his nomination for senator in the Thirty-Second senatorial district of the state at the primary election of the Democratic party held on August 8, 1922.
The specific grounds of the contest were stated in the complaint, and need not be repeated here, because they are not necessary to a decision of the issue raised by the appeal.
With the complaint was filed an instrument in writing signed by 10 reputable citizens of Crittenden county, Ark., who are members of the Democratic party, to the effect that the statements in the complaint were true to the best of the knowledge, information, and belief of each of the subscribers thereto. Then follows the signatures of the 10 persons, and it purports to have been subscribed and sworn to before O. F. Templeton, notary public.
Among other grounds, the defendant, Norfleet, moved to dismiss the complaint because O. F. Templeton was not at the time a duly commissioned and acting notary public. On this point the case was tried upon an agreed statement of facts as follows:
"That O. F. Templeton was formerly a citizen of Clay county, and was granted a commission as notary public by the Governor of the state of Arkansas while residing there; that subsequently the said O. F. Templeton moved to Crittenden county, Ark.; that in the year 1921 he assessed his personal property in Crittenden county for taxation; that he paid his poll tax due for the year 1921 in Crittenden county, Ark., and that he voted in Jasper township, in Crittenden county, Ark., in the primary election held August 8, 1922, and since his removal to Crittenden county he has continuously resided there and has continuously exercised the duties of notary public under the commission as issued to him in Clay county, Ark., and that he has received no additional appointment as notary public in any county in the state of Arkansas from the Governor, and that his term of office under his Clay county appointment expires February 24, 1923, by the terms of that appointment, and as such notary public, under the Clay county commission, he took the affidavits of the affiants to the affidavit supporting the complaint filed in this cause; that O. F. Templeton has filed no bond in Crittenden county, where he has exercised the duties of notary public, but immediately after the execution of the Clay county commission the said O. F. Templeton filed in the office of the circuit clerk of Clay county, Ark., a bond conditioned as required by the statute; that said O. F. Templeton is now, and has been since his appointment, single and unmarried, but the family of his father reside and are citizens of Clay county, Ark., and that said Templeton has made trips to Clay county visiting the said family of his father."
The court held that O. F. Templeton was not a notary public at the time he attempted to take the affidavits in question, and dismissed the complaint for want of jurisdiction.
From the judgment rendered the plaintiff, W. J. Lanier, has duly prosecuted an appeal to this court.
Berry & Wheeler, of Marion, Frank Berry, of Parkin, and W. J. Lanier, of Forrest City, for appellant.
Rudolph Isom, of Marion, J. W. House, Jr., of Little Rock, L. C. Going, of Memphis, Tenn., and S. H. Mann, Sr., of Forrest City, for appellee.
HART, J. (after stating the facts as above).
Section 3772 of Crawford & Moses' Digest confers a right of action on any candidate to contest the certification of vote as made by the county central committee, and provides that the action shall be brought in the circuit court within any county in the circuit or district wherein any of the wrongful acts occurred, if the contest is for a circuit or district office. It provides further that the complaint shall be supported by the affidavits of at least 10 reputable citizens within a designated number of days.
This court has held that the filing of the affidavits in the manner prescribed by the statute is a prerequisite to the exercise of jurisdiction by the court in a contested election case brought under the act. Logan v. Russell, 136 Ark. 217, 206 S. W. 131, and Ferguson v. Montgomery, 148 Ark. 83, 229 S. W. 30.
This makes it necessary to decide whether or not O. F. Templeton was a notary public de jure or de facto at the time the instruments in question purport to have been subscribed and sworn to before him.
This court has held that a notary public is a public officer. Sonfield v. Thompson et al., 42 Ark. 46, 48 Am. Rep. 49, and State ex rel. Gray v. Hodges, 107 Ark. 272, 154 S. W. 506.
After the admission of the state in 1836 by an act of the General Assembly of November 23, 1837, it was provided that the Governor should, by and with the advice and consent of the Senate, appoint one notary public in each county. Revised Statutes Ark. p. 588. Section 6 of the same act provides that, if any notary die, resign, or remove from the county, or be removed from office, his record book and all his public papers shall be delivered to the clerk of the county court to be delivered to his successor.
The Legislature of 1848 amended the act so that the county court of each county might appoint one notary public. Acts of 1848-49, p. 32.
The Legislature of 1874 provided that the Governor may appoint a convenient number of notaries public for each county, who shall be citizens of the county for which they are appointed, and who shall file in the office of the recorder of deeds for the county a bond to the state for the faithful discharge of their duties in the sum of $1,000, with security to be approved by the clerk of the circuit court of the county, and who shall hold office for the term of four years. Crawford & Moses' Digest, § 7969.
The Legislature of 1905 (Acts 1905, p. 687), amended the act to give a notary public power coextensive with the state for the purpose of swearing witnesses, taking affidavits, etc. Section 7970a.
Section 7975 is the same provision as that quoted above as section 6 of the Revised Statutes.
It is contended that under these sections of the statute a notary public is a state officer, and, although from a particular county, he may remove to another county in the state and still continue to be a notary public until his term of office expires. In making this contention counsel lay special stress on the fact that under the statutes a notary public may take affidavits or acknowledgments in any county in the state. We cannot agree with counsel in this contention. Whatever the extent of the territorial jurisdiction conferred upon him, he is an officer of the county. One purpose contemplated by the statute as expressly shown by its language is that the Governor may appoint a convenient number of notaries public for each county. The same section further provides that they shall be citizens of the county for which they are appointed and file a bond with the...
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