Morrow v. Strait, No. 4-2845.

• Court: Supreme Court of Arkansas
• Writing for the Court: Smith
• Citation: 53 S.W.2d 857
• Docket Number: No. 4-2845.
• Decision Date: 31 October 1932
• Parties: MORROW v. STRAIT et al.

Page 857

53 S.W.2d 857 MORROW
v.
STRAIT et al. No. 4-2845. Supreme Court of Arkansas. October 31, 1932.

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

Suit by W. J. Morrow against Audrey Strait and others to contest named defendant's nomination as Democratic candidate for the office of prosecuting attorney in the Fifth Judicial Circuit. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Williams & Williams, of Clarksville, for appellant.

W. P. Strait, of Morrilton, for appellees.

SMITH, J.

Appellant Morrow and appellee Strait were opposing candidates for the nomination of the Democratic Party for the office of prosecuting attorney in the Fifth judicial circuit in the state-wide primary election held August 9, 1932. This circuit is composed of four counties, and the vote of each, as certified after a

Page 858

canvass thereof by the respective Democratic county central committees, was as follows:

For appellant Morrow:

 Conway County... 532
                 Pope County.....1815
                 Yell County..... 887
                 Johnson County..2059
                 ____
                 Total ....... 5293
                

For appellee Strait:

 Conway County...3016
                 Pope County.....2373
                 Yell County.....2349
                 Johnson County.. 519
                 ____
                 Total ....... 8257
                Majority for appellee.................. 2964
                

Appellant brought suit in the Johnson circuit court to contest the nomination of his opponent, and has challenged the vote cast in both Pope and Conway counties.

Certain grounds of contest are alleged in the complaint which are not abstracted in the brief, but the grounds relied upon and abstracted by contestant are: (a) That persons were permitted to vote whose poll tax was paid later than the last Saturday before the first Monday in July, 1932; and (b) "because there was no certified authenticated sworn list of qualified electors filed with the clerk of Conway County (and also Pope County) by the collector, as provided by law, and that the purported list was not filed by the collector with the clerk within the time provided by law, and that no legal election was held in said Conway County (nor Pope County), Arkansas."

The court overruled a motion to dismiss the complaint, which motion was filed upon the ground that the supporting affidavit required by section 3772, Crawford & Moses' Dig., was made only by citizens of Johnson county, where the suit was filed, whereas the elections complained of were held in Conway and Pope counties. It was also insisted, as ground to dismiss the suit, that it should have been brought in the Pulaski circuit court, and that no other court had jurisdiction.

Section 3772, Crawford & Moses' Dig., reads as follows: "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: If for the office of representative or a county or township office, in the circuit court of the county; and if for a circuit or district office, within any county in the circuit or district wherein any of the wrongful acts occurred; and if for United States Senator or a State office, in the Pulaski Circuit Court. The complaint shall be supported by the affidavit 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."

The office of prosecuting attorney is a state office. Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380; Speer v. Wood, 128 Ark. 183, 186, 193 S. W. 785; Dobbs v. Holland, 140 Ark. 398, 405, 215 S. W. 709, 742. See, also, Cotham v. Coffman, 111 Ark. 108, 163 S. W. 1183. But the prosecuting attorney is not a state officer within the meaning of section 3772, Crawford & Moses' Dig., supra. The prosecuting attorney is a state officer whose functions are performed in a subdivision of the state, whereas the state officer to which the statute quoted refers is one elected by the people of the entire state, and not in some political subdivision thereof.

The case of Lanier v. Norfleet, 156 Ark. 216, 245 S. W. 498, involved a contest over the nomination for state senator, a state officer elected by a particular subdivision of the state. We there entertained jurisdiction of a contest for the nomination for this office in a county other than Pulaski.

We are of the opinion also that the supporting affidavit made by citizens of Johnson county alone suffices to meet the requirements of section 3772, Crawford & Moses' Dig. These affiants are citizens of the judicial circuit within which the election was held, and the statute does not require residence in the ward, or city, or county the vote of which is challenged.

We are of the opinion also that the Pulaski circuit court had no jurisdiction over this contest, but that the suit was one which could have been brought in any county within that circuit, and was properly brought in Johnson county, one of the counties comprising the Fifth judicial circuit.

We are of the opinion, therefore, that the motion to dismiss was properly overruled.

After the motion to...