Logan v. Russell

• Decision Date: 21 October 1918
• Docket Number: 175
• Citation: 206 S.W. 131,136 Ark. 217
• Parties: LOGAN v. RUSSELL
• Court: Arkansas Supreme Court

206 S.W. 131

136 Ark. 217

LOGAN v. RUSSELL

No. 175

Supreme Court of Arkansas

October 21, 1918

Appeal from Johnson Circuit Court; A. B. Priddy, Judge; affirmed.

Judgment affirmed.

Atkinson & Brock and J. J. Montgomery, for appellants.

1. The supporting affidavits were filed within the time and duly verified before the case was called for trial. The complaint stated a good cause of action, and if the facts stated are true there can be no question of contestant's right to the nomination. It was error to sustain the demurrer. Acts 1917, Vol. 2, p. 2296; Kirby's Digest, §§ 6120 5976, 6145; 42 Ark. 59; 94 Id. 345. A strict compliance with the statute was not necessary.

2. The statute should be liberally construed to effect the remedy. Mere defects or omissions should be allowed to be cured by amendment. The people are primarily and principally interested. McCrary on Elec. (4 Ed.) § 440, 454; 65 Pa.St. 20; 121 S.W. 460; 35 Id. 1001; 78 Ill. 170; 5 S.E. 704; 65 Pa.St. 20; 8 Stand. Enc. Proc. 78, § 8 and 65, note 88; 1 Brewst. 26; 6 Wyo. 91; 18 Cent. Dig. 446 § 277 (1); 12 S.E. 783. Leave to amend should have been granted.

3. The wrongs were clear and flagrant. 41 Ark. 111.

G. O Patterson, Jesse Reynolds and Carmichael & Brooks, for appellee.

1. The complaint is defective. The presumption is that the returns were properly made and the votes cast as returned by sworn officers. McCrary on Elections (4 Ed.) § 569. The ordinary rules of evidence apply to contested elections. Ib. § 459. The allegations are not sufficient to show that the result would have been changed. 39 Ark. 549. 32 Id. 553; 43 S.E. 368.

2. The complaint was not verified by affidavits as required by law. Acts 1917, 2296, § 12. Its provisions are mandatory. McCrary on Elections, (4 Ed.) § 130; 111 Ark. 388; 70 Id. 240; 80 Id. 369.

3. The complaint does not state that the illegal votes cast were for defendant, nor that they changed the result.

MCCULLOCH, C. J. SMITH, J., dissenting. Mr. Justice WOOD concurs in the views expressed.

OPINION

MCCULLOCH, C. J.

Appellant and appellee were rival candidates in Johnson County for the nomination of the Democratic party for the office of county clerk at a primary election held on the first Tuesday in May, 1918, and appellee was duly certified as the successful candidate. Appellant instituted a contest in the circuit court of Johnson County. He filed a complaint setting forth his grounds of contest, and also filed therewith an unsworn statement signed by ten citizens of the county, which was in the following form:

"We, the undersigned, state that we are reputable citizens of Johnson County, Arkansas, and that we believe the statements of the foregoing complaint to be true."

The complaint and the accompanying statement of the ten citizens were filed in the office of the clerk of the court within ten days after the result of the primary election was duly certified, but the statement of said citizens was not sworn to until after the expiration of that time. It appears in the record that one of the names as originally signed was erased by having a line drawn through it, and that another citizen subsequently signed the petition in the place of the one whose name was thus erased. There was a demurrer to the complaint on various grounds, among others, that the complaint was not supported by affidavits as required by statute. The court sustained the demurrer and dismissed the complaint.

The proceedings were instituted under the statute adopted by a vote of the people at the election of 1916, regulating primary elections. See Acts 1917, p. 2287. That portion of the statute which is material to the controversy now before us reads as follows:

"Section 12. A right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee. The action shall be brought in the circuit court. * * * The complaint shall be supported by the affidavits of at least ten reputable citizens, and shall be filed within ten days of the certification complained of, if the complaint is against the certification in one county, and within twenty days if against the certification in more than one county. The complaint shall be answered within ten days. * * *"

It is conceded that the court based its ruling dismissing the complaint on the ground that supporting affidavits were not filed with the complaint within ten days after the certification of the nomination. We pretermit any discussion of the question whether or not this matter could properly be raised by demurrer, as the court could, and doubtless did, treat the demurrer on that ground as a motion to strike out the complaint, and the court was correct in its decision that the filing of the supporting affidavits within the time mentioned was essential to its jurisdiction. Then the particular form in which the question was raised is not important.

It is also contended, in support of the court's ruling in sustaining the demurrer, that the complaint did not state facts necessary to show grounds of the contest, but we also pass that question and go at once to a decision of the question upon which it is said the court based its judgment.

The record shows on its face that supporting affidavits were not filed within ten days from the date of the certification of appellee's nomination, and the question is therefore squarely presented whether or not that was essential to the court's jurisdiction in the contest proceedings. We think that the filing of the affidavits was jurisdictional, and that the jurisdiction of the court could not be established by filing the affidavits after the expiration of the time specified in the statute. The statute very clearly means that the supporting affidavits must be filed within ten days after the certification of the nomination. The language is somewhat peculiar in that the reference to the supporting affidavits precedes the specification of the time for filing the complaint, but it is manifest, we think, that the framers of the statute meant to require the supporting affidavits to accompany the complaint, and that the complaint as thus supported must be filed within the time specified. The statute does not say that the cause of action shall be supported by affidavits, but that the complaint itself must be thus supported, and this means, we think, that the complaint when filed must be supported by the affidavits, and that both must be filed within the time specified.

We do not agree with counsel for appellee that the statute necessarily requires separate affidavits of ten citizens, but we think there is no objection to combining all the affidavits into one. Nor does the statute require the affiants to state the facts upon which their support of the complaint rests. The language is somewhat indefinite, and we can not read into it a requirement that the facts must be stated, when all that the statute specifies is that the complaint "shall be supported by the affidavits. of at least ten reputable citizens." We are of the opinion that affidavits upon belief of the affiants is sufficient.

The contest proceedings provided by this statute do not constitute civil actions within the meaning of our Code of Civil Practice. It has been so decided by this court with reference to election contests authorized under another statute. In the case of Davis v. Moore, 70 Ark. 240, 67 S.W. 311, it was expressly decided that "election contests are special proceedings, and not civil actions under the Code, and everything must be done therein according to the statute regulating such proceedings, where such statute exists." That decision was followed in others holding that judgments for costs could not be rendered in election contests for the reason that the statute did not authorize it, and that such proceedings do not constitute civil actions within the meaning of the Code. Rhodes v. Driver, 69 Ark. 606, 65 S.W. 106; Williams v. Buchanan, 86 Ark. 259, 110 S.W. 1024; Buchanan v. Parham, 95 Ark. 81, 128 S.W. 563.

The provisions of the statute under consideration should receive a liberal interpretation so as to effectuate the wholesome purposes intended by its framers, but, the proceedings authorized thereunder being special, we can not, without doing violence to well-settled rules of interpretation, extend those provisions beyond the plain meaning of the language employed. There is, we think, no escape from the conclusion that the language of the statute with reference to the time of filing the complaint is mandatory, and not merely directory, and that the same requirement applies to the accompanying affidavits. The plain purpose of the framers of the statute was to require expedition in the commencement and preparation of contests of primary elections, and we do not feel at liberty to disregard the language of the statute or lessen its binding effect by declaring it to be merely directory.

Our conclusion, therefore, is that the trial court was correct in holding that there was a lack of jurisdiction because the complaint, properly supported, was not filed within the time prescribed by statute.

Judgment affirmed.

DISSENT BY: SMITH

SMITH J., (dissenting).

The history of the enactment of the primary election law is so recent and is so well known that the courts can not be oblivious to that history. A convention of the dominant party declared that a necessity existed for such legislation and appointed a commission to prepare a bill for an act to remedy the evil which had moved the convention to action. The convention itself named a commission of lawyers to prepare the bill, and the commission thus constituted was composed of a number of leading lawyers of the State. The bill...