Morrow v. Strait, 4-2845.
| Decision Date | 31 October 1932 |
| Docket Number | No. 4-2845.,4-2845. |
| Citation | 53 S.W.2d 857 |
| Parties | MORROW v. STRAIT et al. |
| Court | Arkansas Supreme Court |
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.
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 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:
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 dismiss had been overruled, a demurrer to the complaint was filed, and sustained, and the contestant declining to plead further the cause was dismissed, and this appeal is from that order.
The demurrer raised the two questions first stated, and these we proceed to discuss.
The first is, whether persons whose poll taxes were not paid prior to the first Monday in July, but which were paid on or before the third Monday of that month, had paid within the time required by law to become eligible to vote in the ensuing August primary election.
Section 3741, Crawford & Moses' Dig., provides that: "The `time for collecting taxes,' as this term is employed in the Constitution in connection with the payment of poll-taxes, is hereby defined to be the period between the first Monday in January and the Saturday next preceding the first Monday in July, on which last named date the collector is required by law to make his final settlement with the county court."
Another section of Crawford & Moses' Digest, section 3740, provides that on the first Monday in July of each year the collector shall file with the county clerk a list of the names of all persons who had paid poll taxes. In other words, poll taxes might be paid up to and on the Saturday preceding the first Monday in July, and on the first Monday the collector was required to file a list of the persons who had so paid, thus imposing a very difficult, if not impossible, task.
Under this state of the law the General Assembly, at its 1931 session, passed Act No. 152, Acts 1931, p. 406, which was entitled: "An Act to Amend Section 3740 of Crawford & Moses' Digest Extending the Time from the 1st to the 3rd Monday in July in Which Time the Collector Shall File with the County Clerk a List of Names of Persons Paying Poll Tax and the Time from the 1st Day of July to the 1st Day of August for the County Clerk to Record Same."
The title to this act indicates an intention to extend the time, not for paying taxes, but for certifying the list of those who had paid. But the body of the act does not conform to that expression of the legislative intent. This act reads in part as follows: ...
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