Martin v. Gray

• Decision Date: 26 October 1936
• Docket Number: 4-4565
• Citation: 97 S.W.2d 439,193 Ark. 32
• Parties: MARTIN v. GRAY
• Court: Arkansas Supreme Court

97 S.W.2d 439

193 Ark. 32

MARTIN v. GRAY

4-4565

Supreme Court of Arkansas

October 26, 1936

Appeal from Stone Circuit Court; S. M. Bone, Judge; affirmed.

Judgment affirmed.

W. O Edmondson and Williamson & Williamson, for appellant.

Dene H Coleman, for appellee.

OPINION

JOHNSON C. J.

Appellant, D. S. Martin, and appellee, John H. Gray, were rival candidates for nomination to the office of county judge of Stone county in the democratic primary on August 11, 1936. A certificate of nomination was awarded appellee by the election officials and appellant instituted this contest proceeding.

The complaint alleged as grounds for contest that the sheriff and collector of Stone county on June 20, 1936, unlawfully issued and subsequently unlawfully delivered 72 poll tax receipts to various parties, residents of said county, naming them, who unlawfully and without right participated in said primary and voted for appellee; and that the county central committee of said county unlawfully canvassed and counted for appellee five absentee ballots. It was then alleged that if these spurious ballots were thrown out appellant would have a majority of the legal votes cast in said primary and, therefore, entitled to the certificate of nomination.

Upon trial of issues joined and long subsequent to the 10 days period allowed for instituting contest proceedings it was ascertained that a large number of voters in Stone county had failed and neglected to sign the duplicate ballots cast by them and appellant unavailingly sought to take advantage of this as an additional ground of contest.

The trial court found from the testimony adduced that appellant's contest was without substantial merit and dismissed same from which this appeal comes.

As stated in appellant's brief he urges three reasons upon us for reversal, namely:

"1. That the lower court erred in its finding and holding that the forty-six poll tax receipts issued on June 22, 1936, were legal receipts and entitled the holders thereof to vote in the primary election on August 11, 1936.

"2. That the lower court erred in refusing to throw out the entire vote of Bellmore, Farris and Red River townships for the reason that the duplicate ballots in these townships were not signed by any of the voters.

"3. That the lower court erred in its holding that the five absentee ballots could be legally counted by the central committee on Friday following the election on the previous Tuesday."

The first assigned reason for reversal is grounded upon uncontroverted facts to the effect that the county collector on June 20, 1936, issued and subsequently delivered to so many people 46 poll tax receipts and did not indorse thereon "this poll tax is issued after June 15," as required by act 123 of 1935, and the holders thereof were permitted to vote by the election officials.

These forty-six poll tax receipts were held valid by the trial court upon the theory that the respective parties paid to the collector the money therefor before midnight of June 15, 1936. This was error. Under the plain mandate of § 4 of act 123 of 1935 these 46 poll tax receipts were ineffectual to and did not entitle the holders thereof to vote in the primary election on August 11, 1936. Said act in definite language provides "and it is also made the duty of all collecting officials in this state to cease issuing poll tax receipts after midnight of the 15th day of June of each year, etc." The word "cease" is defined by Webster's New International Dictionary to mean "to come to an end; to stop; etc.," and moreover, this is its common use and acceptation. One cannot "stop" or "cease" doing a thing and at the same time continue its performance. It follows from this that the poll tax receipts issued and delivered subsequent to midnight, June 15, 1935, were ineffectual to those receiving them as a basis of qualification to vote in the August, 1936, primary. But these views afford appellant no comfort as will hereinafter be shown.

But appellee says that the above conclusion renders act 123 of 1935 in conflict with the Eighth amendment to the Constitution of 1874 in that it deprives a poll tax holder of the right to vote. It will be noted that the Eighth amendment expressly recognizes the competency of the legislature to ascertain and determine the time when poll taxes should be paid. Said amendment in part provides: "* * * and who shall exhibit a poll tax receipt or other evidence that they have paid their poll taxes at the time of collecting taxes next preceding such election."

The...