Pace v. Hickey, 5-3048

• Citation: 370 S.W.2d 66,236 Ark. 792
• Decision Date: 03 June 1963
• Docket Number: No. 5-3048,5-3048
• Parties: Jack PACE, Appellant, v. George HICKEY, Appellee.
• Court: Supreme Court of Arkansas

Page 66

370 S.W.2d 66

236 Ark. 792

Jack PACE, Appellant, v. George HICKEY, Appellee.

No. 5-3048.

Supreme Court of Arkansas.

June 3, 1963.

John B. Driver, Marshall, Roy E. Danuser, Mt. Home, for appellant.

Appellee's brief stricken.

GEORGE ROSE SMITH, Justice.

This is an election contest. In the 1962 general election the appellant, the Democratic nominee for the office of sheriff of Marion County, was opposed by the appellee, a write-in candidate. The appellee was certified to have been the winner by a vote of 969 to 961. This is an appeal from a judgment upholding that certification. We are presented with only two questions, both involving the use of printed stickers in behalf of the write-in candidate.

All the facts were stipulated. Before the election the appellee arranged for the printing and distribution throughout the county of stickers bearing his name, for use by the electors. The appellee received 969 votes to the appellant's 961, but 539 of the appellee's votes were cast by the pasting of stickers to the ballots. On 100 or more of these votes the X-mark, indicating the elector's choice, had been placed on the sticker by someone other than the elector and at some time before the elector entered the polling place and affixed the sticker to his ballot.

It is first contended that no vote cast by means of a sticker should be counted, for the reason that the statute refers only to 'write-in votes,' and a printed sticker does not satisfy the requirement that the name be written. Ark.Stat.Ann. § 3-826 (Repl.1956). This identical contention was rejected in Bennett v. Miller, 186 Ark. 413, 53 S.W.2d 853, under a statute permitting the elector to 'write the name of any person for whom he may wish to vote.' In holding that the law permitted the use of stickers we said:

'We do not think the word 'write' is there used in a technical sense but that such name might be placed on the ballot in any convenient way, such as the use of a rubber stamp or a sticker as was done in this case. As said by this court in Ashby v. Patrick, 181 Ark. 859, 28 S.W. (2d) 55, 'If the ballot voted on was such as not to mislead the electors, but to give them an opportunity to express their will, it was sufficient.' So here, the ballot did not have the names of any persons who were candidates for directors. It was left to the electors to vote for whom they pleased by 'writing' their names on the ballots. If they chose to use stickers with the names of the persons they desired to vote for printed thereon, we can see no valid objection thereto, and there is no provision of statute violated.'

Bennett v. Miller was decided in 1932, more than thirty years ago. If we misconceived the intent of the statute the lawmakers have had many opportunities in the intervening years to set the matter right. No such action has been taken. To the contrary, when the present statute was enacted in 1949 the legislature contended itself with a reference to 'write-in votes.' We are unwilling in effect to modify the statute by overruling the Bennett case. The contestant's broad objection to the use of stickers cannot be sustained.

The appellant's other argument is directed against the one hundred or more write-in votes involving stickers already marked with an X when the voter entered the polling place. Counsel rely on Edwards v. Williams, 234 Ark. 1113, 356 S.W.2d 629, where it was held that an election judge could not be allowed to take a ballot out to be marked by a disabled voter in her car, because the statute provides that no person shall be permitted to carry a ballot outside the polling place. Ark.Stat.Ann. § 3-834 (Repl.1956).

All the stickers in the case at bar were marked with an X; so we are not confronted with an attempt to cast a write-in vote without the use of an X. The only question is whether the X may be placed on the sticker before the voter enters the polling place. We hold that it may be. The use of printed stickers is permissible, as we have seen. This means that the write-in candidate's name may be printed on the sticker before the voter reaches the polls. This being true, there is no good reason for saying that the X-mark, if one is actually necessary, cannot also be put on the sticker in advance. What the statute requires is that the voter mark his ballot inside the polling place. Here the marking of the ballots was accomplished by the affixation of stickers. As long as that substantive step was taken inside the polling place it made no difference, under either the letter or the spirit of the statute, when or where the making of the X-mark took place.

The appellant has moved to strike a portion of the appellee's brief, which attributes seriously wrongful conduct to the appellant's counsel and to the special county judge who heard the case in the first instance. These accusations appear in the appellee's brief as assertions of fact, but they are wholly unsupported by any proof in the record. Their inclusion in the brief is a clear-cut violation of Rule 6 of this court and an inexcusable breach of the obligation of professional courtesy that we except on the part of members of the bar. All copies of this brief will be stricken in their entirety from the files of the court.

Affirmed.

HARRIS, C. J., concurs.

JOHNSON, J., dissents.

HOLT, J., not participating.

HARRIS, Chief Justice (concurring).

I am concurring, rather than dissenting, because I feel that appellee and his supporters had a right to rely on the Bennett v. Miller decision mentioned in the present majority opinion. In the Bennett opinion, the court said:

'We think it makes no difference how the electors placed the names of the persons they desired to vote for on the ballots, in the absence of fraud. They might have been written with pen and ink, pencil, typewritten, or by stickers, and the result would be the same, as in either case it expressed the wish of the individual elector.'

I strongly disagree with the thought therein expressed and with the holding in the case. To me, the word, 'write,' means 'lettering by hand,' (though the term...