Neal v. Shinn

• Decision Date: 04 June 1887
• Citation: 4 S.W. 771,49 Ark. 227
• Parties: NEAL v. SHINN
• Court: Arkansas Supreme Court

4 S.W. 771

49 Ark. 227

NEAL v. SHINN

Supreme Court of Arkansas

June 4, 1887

APPEAL from, and Certiorari to, Pope Circuit Court, M. L. DAVIS Special Judge.

The County Court of Pope county, at a special term on the 20th of July, 1886, upon proper petition, ordered an election to be held at the general election, September 5, 1886, submitting the questions (1) of removal of county seat from Dover; (2) removal to Russellville; (3) removal to Atkins. At such election a majority of the qualified voters of said county voted in favor of a change from Dover, but there was not a majority for Russellville or Atkins. At the October term 1886, of said court, T. M. Neal and others, after due notice filed their petition contesting said election, and the court upon hearing, sustained the contest, and set aside the election, and J. L. Shinn et al., as contestees, appealed to the Pope Circuit Court. The time for holding the Pope Circuit Court, as fixed by law, was the first Monday--the first day--of November, 1886; but the court was not opened until the third day (Wednesday), when the Circuit Judge appeared, and proceeded to open and hold the court. On the fifth day of said month M. L. Davis was elected special Judge, and on the twelfth he proceeded to try the contest, upon the amended petition of contestants, and demurrer of contestees thereto, and sustained the demurrer, and so rendered judgment; and thereupon ordered an election to be held on the 19th day of March, 1887. Such an election was then held, and a majority of the voters of said county voted to locate the county seat at Russellville. The contestants appealed, and also sued out a writ of certiorari.

Affirm.

McKennon & McGill for petitioners.

1. The validity of the first election was the only question presented to the Circuit Court by the petition. Having held on demurrer to the petition that the first election was valid, it had no jurisdiction to order a second election--that matter being exclusively within the jurisdiction of the County Court. Mansf. Dig., sec. 1160; Russell v. Jacoway, 33 Ark. 191.

2. The Legislature could not make the judgment of the Circuit Court ordering a second election valid, because the court had no jurisdiction of the subject matter. Cooley's Const. Lim., secs. 457, 472-3; Pryor v. Downey, 50 Cal. 388.

3. All of the proceedings in the Circuit Court were coram non judice, and void, because the Judge did not appear and open the court on the day prescribed by law. Freeman on Judgments, sec. 121, and note; People v. Sanchy, 24 Cal. 17; People v. Bradwell, 2 Cow., 445; Dunn v. State, 2 Ark. 249; Brunley v. State, 20 Ark. 77; Grimmell v. Askew, 2 S.W. Rep., 707; State v. Williams, 2 S.W. 843.

4. These proceedings could not be cured by legislative enactment, unless the Legislature might, by a prior law, have made the time of opening and organizing the court immaterial, or unless an act providing that the Circuit Court might be held at a time not prescribed by law would have been valid. Green v. Abraham, 43 Ark. 420; Cooley's Const. Lim., 463.

But the Circuit Courts must hold their terms in each county, at such times and places, as are or may be prescribed by law. Sec. 12, art. 7, Const. of 1874.

The Legislature could not dispense with this constitutional requirement.

The only way the term could have been saved, after the failure of the regular Judge to open the court on the first day of the term, would have been by a special election on the second day of the term. Sec. 21 art. 7. Const. 1874. And the judge so elected, could have legally held the court until the regular Judge appeared.

There being no legal court, a special Judge could not legally be elected to try a case in which the regular Judge was disqualified. All the proceedings were void.

Wilson & Granger for appellees.

1. The giving or offering to give facilities for the public convenience of the whole county as an inducement to move a county seat, is not bribery. McCrary on Elec., sec. 148; 10 Iowa 212; nor is giving bond to furnish such facilities. 18 Cent. L. J., 278; 2 W. C. Rep., 252; 16 Cent. L. J., 176.

2. The November term of the Circuit Court was not a nullity because not opened until the third day of the term. 3 Heisk. (Tenn.), 202; 2 Head (Tenn.), 582; 17 Tex. 1; 13 Ill. 671.

But any irregularity was cured by the Curative Act of 1887.

3. The Circuit Court had jurisdiction on appeal to order the second election. Const. 1874, art. 7, sec. 14; Mansf. Dig., secs. 1364, 1367, 1385 to 1393, 1436 to 1441; 33 Ark. 508; 38 id., 388; 4 id., 630; 5 id., 301.

OPINION

COCKRILL, C. J.

The question presented upon the threshold in the consideration of this case, goes to the validity of the term of the Circuit Court at which the proceedings were had. The term as fixed by statute began on the first Monday in November, but the court was not opened until the Wednesday following, when the Judge of the circuit appeared, opened and held the term of court at which the proceedings complained of were had. If the court was held at a time not authorized by law, its proceedings are void. Brumley v. State, 20 Ark. 77; State v. Williams, 48 Ark. 227. The decision of this case may, therefore, reach beyond the single question of the election to change the location of the county seat. It involves the legality of all the judgments rendered and proceedings had at the November term, 1886, of the Pope Circuit Court. The Legislature undertook by act of February 21st of the present year to validate the proceedings of this term, but whether the act can have the desired effect, aside from other considerations, depends upon the solution of the question whether the Legislature can authorize the Judge to appear and open the court on the third day of the term, after a failure of the practicing attorneys to preserve the term for him by the election of a special Judge to preside in his absence, as provided by section 21, article 7, of the Constitution. If the Legislature is without power to authorize the Judge to appear on the third day and then for the first time cause the court to be opened, it is apparent they could not breathe judicial life into his acts done at such a time, by a retroactive act, because that would be doing by indirection what could not be done directly. If they are not prohibited from empowering the Judge to appear on the third day and open court, notwithstanding no special Judge had been previously chosen, the curative act was unnecessary, because the provision of the old Revised Statutes which authorized the Judge to appear and open court as late as the third day would then stand intact unaffected by the constitutional provision, and would afford legislative authority for the action of the Judge in opening court at the time disclosed by this record. The construction of the constitutional provision referred to must, therefore, furnish the solution of the question. If it contains no limitation upon its exercise, the power resides in the Legislature to authorize the Judge to open court at any time within the period fixed for the term, and in that event, the statute referred to is not inconsistent with any provision of the Constitution of 1868 or 1874, and has not been abrogated by either. Both instruments continue in force all previous laws not inconsistent with their provisions. Sec. 1, Schedule Const. 1874; art 15, sec. 16, Const., 1868.

The provision is as follows:

"Whenever the office of Judge of the Circuit Court is vacant at the commencement of a term of such court, or the Judge of said court shall fail to attend, the regular practicing attorneys in attendance on said court may meet at 10 o'clock a. m., on the second day of the term, and elect a Judge to preside at such court, or until the regular Judge shall appear."

It is not here affirmed in terms that the General Assembly shall not authorize the court to be opened by the regular Judge after 10 o'clock of the second day in the event no special Judge is chosen. Negative words are not necessary however, to create a prohibition. Every positive direction contains, an implication of what is contrary to it, and affirmative words may imply a negative of what is not affirmed; but such an implication is not as readily drawn in the construction of a State Constitution as it is in dealing with a statute. Vance v. Austell, 45 Ark. 400. The reason is "the Constitution of a State is not a grant of enumerated powers. * * * We look to it not so much to see whether a contested enactment is authorized, but whether it is prohibited." Vance v. Austell, supra. For the General Assembly may exercise unlimited legislative power...