Reed v. Baker

• Decision Date: 04 June 1973
• Docket Number: No. 73--24,73--24
• Citation: 254 Ark. 631,495 S.W.2d 849
• Parties: Johnny REED et al., Appellants, v. Ralph BAKER et al., Appellees.
• Court: Arkansas Supreme Court

Page 849

495 S.W.2d 849

254 Ark. 631

Johnny REED et al., Appellants, v. Ralph BAKER et al., Appellees.

No. 73--24.

Supreme Court of Arkansas.

June 4, 1973.

Rehearing Denied July 9, 1973.

Wommack & Lineberger by Erwin L. Davis, Fayetteville, for appellants.

W. Q. Hall, Huntsville, Murphy, Carlisle & Taylor, Fayetteville, for appellees.

FOGLEMAN, Justice.

Appellants are Johnny Reed, Larry Easterling and Tom Jackson, unsuccessful Republican candidates for the offices of Sheriff, Treasurer and Clerk of Madison County, respectively, at the 1972 General Election. Their contest of the election was dismissed by the circuit court on a pretrial motion of appellees Ralph Baker, Jerry Bollinger and Herbert Haython, the successful Democratic candidates. The motion alleged that the contestants failed to properly swear to the allegations of the complaint. The motion was granted on the basis of the pleadings and depositions filed in the case. Before granting the motion, the circuit judge overruled a general demurrer to the complaint. Appellants contend that the circuit court erred in dismissing the contest. We agree.

In pronouncing judgment, the judge stated that while the complaint contained all the allegations necessary to state a cause of action, the law requiring verification of the complaint carries an implication that a contestant must have a reasonable basis for his belief in the truth of his allegations founded upon his own investigation of the facts. We do not believe that our statutes make this requirement.

It was revealed through discovery depositions of the contestants taken pursuant to court order that the contestants had relied entirely upon reports of investigators acting in their behalf, along with other hearsay, for the essential allegations of their complaint. None had personal knowledge of any of the facts, and actually became aware of some errors in these allegations before the hearing. The depositions did disclose that the contestants verified the complaint before the notary public who signed the jurat. The verification read as follows:

We, the undersigned plaintiffs, state on oath that we have read the above and foregoing Election Contest Complaint and the facts and allegations contained therein are true and correct to the best of our knowledge, information, and belief.

Appellees do not seriously contend that the complaint does not state a cause of action or that the form of the affidavit of verification or the observance of formalities required in connection with its execution was in anywise deficient. Their motion was directed to the disclosures in the discovery depositions revealing that neither of the appellants knew how any of the voters named in their complaint voted, that it is not shown to what extent appellants were informed of facts by their investigators, and that appellants were not really able to say that the results of the election would be changed by eliminating the votes they alleged were illegal. Thus, say appellees, the contest is reduced to a fishing expedition on which the court is called to recanvass the results of the election.

As previously indicated, we do not agree with the argument of appellees or the holding of the circuit court in this regard. The pertinent statutory requirement of the present Election Code is set out by Ark.Stat.Ann. § 3--1001 (Supp.1971). Insofar as applicable here, it reads:

A right of action is hereby conferred on any candidate to contest * * * the certificate of vote as made by the appropriate officials in any election. The action shall be brought in the Circuit Court of the county in which the * * * certificate of vote is made when a county * * * office, * * * is involved, * * *. The complaint shall be verified by the affidavit of the contestant to the effect that he believes the statements thereof to be true, and shall be filed within twenty (20) days of the certification complained of. The complaint shall be answered within twenty (20) days.

It should be noted that appellant Reed testified that he employed an attorney and investigators whom he was willing to trust, that the signers of certain affidavits attached to the complaint and relating facts alleged therein were made by the people whom he knew to be trustworthy and, in conclusion, that he believed, but did not know, the facts stated in the complaint to be true. Easterling testified that he was willing to believe the results of the investigation and that, after reading the complaint, he was fairly well convinced that the facts alleged therein were true and correct. Jackson stated that he had nothing to offer different from the testimony of Reed and Easterling in regard to the facts and that he did not swear that all the challenged electors voted for his opponent, but believed that he alleged that they did.

At the outset, we should say that the procedure for contesting an election for county office is purely statutory, and a strict observance of statutory requirements is essential to the exercise of jurisdiction by the court, as it is desirable that election results have a degree of stability and finality. Article 19, Section 24, Constitution of Arkansas; Ferguson v. Wolchansky, 133 Ark. 516, 202 S.W. 826; Casey v. Burdine, 214 Ark. 680, 217 S.W.2d 613; Curry v. Dawson, 238 Ark. 310, 379 S.W.2d 287; Murphy v. Trimble, 200 Ark. 1173, 143 S.W.2d 534. See also, Terry v. Harris, 188 Ark. 60, 64 S.W.2d 80. But the purpose of such statutes is to aid the democratic processes upon which our system of government is based by providing a ready remedy whereby compliance with election laws may be assured and to facilitate, not hinder by technical requirements, the quick initiation and disposition of such contests. Gunter v. Fletcher, 217 Ark. 800, 233 S.W.2d 242; LaFargue v. Waggoner, 189 Ark. 757, 75 S.W.2d 235. To that end, statutes providing for contests should be liberally construed. Gunter v. Fletcher, supra; Hailey v. Barker, 193 Ark. 101, 97 S.W.2d 923; Smith v. Smith, 189 Ark. 997, 75 S.W.2d 804; Logan v. Russell, 136 Ark. 217, 206 S.W. 131. See also, Ferguson v. Montgomery, 148 Ark. 83, 229 S.W. 30.

Under our statute, the required affidavit is jurisdictional. See Brown v. Anderson, 210 Ark. 970, 198 S.W.2d 188; Walton v. Rucker, 193 Ark. 40, 97 S.W.2d 442; Kirk v. Hartlieb, 193 Ark. 37, 97 S.W.2d 434. The requisites of an affidavit are that it be a voluntary written statement, sworn to or affirmed before some person legally authorized to administer an oath or affirmation. Kirk v. Hartlieb, supra. Jurisdiction of the case attached when the required affidavit was filed. Walton v. Rucker, supra.

Jurisdictional facts must appear upon the face of the proceedings. Casey v. Burdine, 214 Ark. 680, 217 S.W.2d 613. Since the affidavit verifying the complaint is jurisdictional, however, the contestee has the right to question its sufficiency as to form and manner of execution, i.e., whether a duly qualified affiant was sworn before the notary public executing the jurat, and whether the person acting as such was actually a legally authorized notary public. Murphy v. Trimble, 200 Ark. 1173, 143 S.W.2d 534; Brown v. Anderson, supra; Terry v. Harris, 188 Ark. 173, 64 S.W.2d 324. And this is so, even if the affidavit appears to be sufficient upon its face. Thompson v. Self, 197 Ark. 70, 122 S.W.2d 182.

Under the former statutes governing primary election contests, it was required that a complaint be supported by the affidavits of at least 10 reputable citizens. We held that these affidavits made upon belief of the affiants merely, without setting forth the facts upon which their belief was based, were sufficient to confer jurisdiction and that there was no error in denying a motion to dismiss for insufficiency of these affidavits. Ferguson v. Montgomery, 148 Ark. 83, 229 S.W. 30. There is really no basic difference in the purposes of the former primary election contest statute and the present statute which seems to govern both primary and general election contests, particularly in considering jurisdictional requirements, and many of the cases cited herein are cases involving contests of primary elections. Furthermore, the fact that the primary election statute required the affidavits of 10 persons and the statute now under consideration requires that of the contestant only is immaterial insofar as the question of sufficiency of the affidavit is concerned.

In Matthews v. Warfield, 201 Ark. 296, 144 S.W.2d 22, we held that the affidavit verifying a contestant's complaint upon knowledge, information and belief of affiants was sufficient when each affiant signed it in the presence of a notary public after having read the complaint or having been told its substance and object, with an understanding of the purpose of the affidavit, and the knowledge that he was signing it for the purpose of swearing to it or as a method of affirmation. We held that the trial court erred in granting a motion to dismiss for want of jurisdiction based on allegations that the affidavit was deficient in that some of the affiants signed it without being under oath, without reading or having the complaint read to them and without swearing that the allegations were true. It is not required under the primary election statute that an affiant state the facts upon which his support of the complaint rests, if the affidavit was made upon the belief of the affiant. Logan v. Russell, 136 Ark. 217, 206 S.W. 131. After the primary election law was changed so that verification of a complaint by the...