Rucks v. Renrow

• Decision Date: 11 April 1891
• Citation: 16 S.W. 6,54 Ark. 409
• Parties: RUCKS v. RENROW
• Court: Arkansas Supreme Court

16 S.W. 6

54 Ark. 409

RUCKS v. RENROW

Supreme Court of Arkansas

April 11, 1891

APPEAL from Cleveland Circuit Court, CARROLL D. WOOD, Judge.

Judgment affirmed.

U. M. & G. B. Rose and D. H. Rousseau for appellants.

1. The declarations of voters made after and before the election as to their qualifications were competent evidence. Story, Eq Pl, sec. 97; Pom. Eq. Jur., sec. 260; Gr. Ev. sec. 180; 27 N.Y. 59; 23 Wis. 319; 9 Ind. 477.

2. The offer to build a school, if proved, would be unobjectionable. 49 Ark. 227.

3. The court did not err in allowing testimony as to illegal votes not specified in the notice. Payne on Elections, sec. 827; McCrary on Elections, sec. 394; Mansf. Dig., sees. 2720 2722.

4. The identity of name raises a presumption of identity. When it is shown that a man has voted, and the man of that name in that township is disqualified, then the burden is on the other side to repel the presumption of identity. 1 Bar. & Ald 182; 9 M. & W., 798; ib., 47; 46 Mich. 320; 32 id., 48; 46 Cal. 49; 8 Ala. 746; 33 Ill. 339; 61 Mo. 276; 18 id., 274; 17 Mo. 435; 29 Vt. 179; 5 Watts, 14; 57 Penn. St., 397; 3 A. K. Marsh., 202.

Met L. Jones for appellees.

1. The constitution and laws of this State make no provision for the contest of a county seat election, and appellants had no authority to bring this suit. Mansf. Dig., sees. 2720, 2722.

2. Proof of the declarations of voters as to how they voted is hearsay and incompetent. 41 Ark. 112; 9 Kan. 581; 76 Ill. 46; 81 Ill. 549; 1 Gr. Ev., 124, s; 79 Ind. 282; McCrary on El., secs. 272-3; 12 S.W. 960, 970.

3. The offer to build a colored school was in the nature of a bribe. It rendered the election unfair and unequal. 41 Ark. 63.

OPINION

HUGHES, J.

This is an appeal from a judgment of the circuit court of Cleveland county that, at an election held on the 17th day of August, 1889, to determine whether the county seat of that county should be located at the town of Rison or the town of Kingsland in said county, Rison had received a majority of the legal votes cast at said election, and that the county seat be removed to said town of Rison from the former county seat location at Toledo, and that Rison should thereafter be the county seat of said county. The case was brought to the circuit court on appeal from the judgment of the county court, in which court, upon the canvass of votes cast at the election by the clerk of the county courts and the filing of his certificate in said court showing that Rison had received 1009 votes and Kingsland 1002 votes, the appellants and others gave notice that they would contest the election, and afterwards filed a written notice of contest setting out the ground upon which they relied, upon which the county court made orders for the taking of depositions, and set the cause for hearing. This was before the court had proceeded to judgment, and thus appellants became parties to the record, and made the appellees parties, the former representing Kingsland and the latter Rison. The judgment of the county court was for Kingsland, from which appellees have appealed to the circuit court, where a trial de novo was had, resulting in a judgment for Rison from which this appeal was taken.

It will be observed that there was no independent suit to contest the election, after the judgment of the county court was rendered, but that appellants made themselves parties in the interest of Kingsland and made the appellees parties in the interest of Rison, pending the determination of the election by the county court, and before any judgment had been rendered. They had a right to become parties, and appeal from the judgment of the county court, though no provision has been made by statute for an appeal in such a case. McCullough v. Blackwell, 51 Ark. 159, 10 S.W. 259, and authorities cited.

It is contended and shown by evidence that many illegal votes were cast at the election, some by minors, some by persons convicted of infamous crimes, and some by non-residents of the county, and some by persons who had not resided long enough in the county and townships in which they voted, to become legal voters. The circuit court refused the following declaration of law asked for by appellants, and gave the converse asked for by the appellees: "The declarations of voters made after or before the election showing their want of qualifications to vote, so far as age and residence are concerned, are competent and legal testimony to show that such voters did not posses such qualifications." Exceptions were saved, and it is insisted here that this is the law.

The adjudicated cases on this question are not numerous, and are divided. The principal cases that hold such declarations admissible are, People v. Pease, 27 N.Y 45; State v. Olin, 23 Wis. 309; People v. Cicott, 16 Mich. 283. Among those which hold such evidence inadmissible, are Gilleland v. Schuyler, 9 Kan. 569, by Judge Brewer; Davis v. State, 75 Tex. 420, 12 S.W. 957 (Tex.); Beardstown v. Virginia, 81 Ill. 541, where it is held that: "The declarations of a person made sometime after having voted at an election, admitting or stating facts showing he was not a legal voter, are inadmissible to show his disqualification to vote." The declarations of a voter as to his qualifications may be so contemporaneous with his voting as to be part of the res gestae, and as such competent evidence. Patton v. Coates, 41 Ark. 111. Judge McCrary, in his work on Elections, sec. 448, says: "The English authorities, though not entirely uniform, are generally in favor of admitting such declarations, and perhaps the weight of authority in this country is the same way, though it cannot be denied that the tendency in the more recent, and we think also the better considered cases, is to exclude this evidence as hearsay." The case of People v. Pease, 27 N.Y. 45, supra, was decided by five judges against three dissenting. The case of People v. Cicott, in 16 Mich. 283, supra, was decided by an equal division of the Judges. Judge Cooley says. "If votes were taken viva voce, so that it could always be determined with absolute certainty how every person had voted, the objection to this species of scrutiny after an election had been held would not be very formidable. But when secret balloting is the policy of the law, and no one is at liberty to inquire how any elector has voted, except as he may voluntarily have waived his privilege, and when consequently the avenues to correct information concerning the votes cast are carefully ...